On Jan. 13, 2022, the Supreme Court of the United States (SCOTUS) issued rulings on two vaccination (and testing) mandates.

Private employers with 100 or more employees subject to Occupational Safety and Health Administration’s (OSHA) vaccination (and testing) emergency temporary standard (ETS) do not need to proceed with compliance.

The ETS went into effect on and has been in litigation since Nov. 5, 2021. Today, SCOTUS ruled that OSHA was not given the power to regulate public health more broadly than occupational dangers. In addition, SCOTUS explained that challenges to the ETS were likely to succeed on the merits because the agency lacks the authority to impose the mandate. Specifically, the OSH Act only allows the agency to set workplace safety standards, not broad public health measures.

Finally, the court argues that the requirement that employees either become vaccinated or undergo weekly testing is not an exercise of federal power. Instead, SCOTUS stated the ETS represents a “significant encroachment into the lives—and health—of a vast number of employees.”

Health care providers subject to the Centers for Medicare and Medicaid Services’ (“CMS”) Interim Final Rule mandating vaccinations must proceed with compliance.

In this case, the Court reasoned that the mandate was consistent with federal authority granted the agency by Congress. This decision lifts prior injunctions that lower courts imposed on the CMS vaccine mandate, allowing the rule to be implemented and enforced against CMS-approved health care providers.


Employer Next Steps

Private sector employers with 100 or more employees (subject to the ETS) are not required to comply with the OSHA ETS vaccination and testing mandate at this time.

However, CMS-approved health care providers, i.e., facilities receiving Medicare or Medicaid funding, must comply with CMS’ vaccination mandate.

On a separate note, the vaccination mandate applicable to federal (sub)contractors continues to be blocked nationally per a preliminary injunction granted by a Georgia federal judge. Stay tuned for further developments.


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This blog and its contents are not intended to be exhaustive nor should any discussion or opinions be construed as legal advice. Readers should contact legal counsel for legal advice.