United States Supreme Court - OSHA Stay Upheld; ETS Requirements

On Thursday, January 13, 2022, the United States Supreme Court reinstated the stay on the Occupational Safety and Health Association’s (OSHA) Emergency Temporary Standard (ETS) by a vote of 6-3. This decision blocks the ETS COVID-19 mandates that were scheduled to be enforced by OSHA beginning on February 9, 2022 with respect to non-healthcare workers. The Supreme Court found that OSHA exceeded its statutory authority in issuing the ETS, which required private employers with 100 or more employees to implement a vaccine or test policy.

This decision effectively stays implementation of the ETS mandates pending a final disposition of the numerous lawsuits that have been filed around the country challenging OSHA’s authority to issue the ETS. The effect of the Supreme Court’s opinion is that private employers are no longer required to implement the vaccine or test policy; instead, it will be up to state and local governments to regulate public health in non-healthcare workplace settings pursuant to their respective authorities.

While the ETS applied only to private employers who met the 100 employee threshold, the ETS also included provisions that required the Michigan Occupational Safety and Health Association (MIOSHA) to issue its own version of the ETS, which likely would have applied to public employers as well. With the Supreme Court’s ruling blocking enforcement of the ETS, MIOSHA is no longer obligated to issue a Michigan-specific vaccine or test mandate.

Separately on January 13, 2022, the Supreme Court also ruled 5-4 that the Secretary of Health and Human Services (“HHS”) has authority to require healthcare facilities that accept Medicare and Medicaid funding to ensure their staffs are vaccinated against COVID-19, exempting only those with medical or religious reasons, as a condition of receipt of these federal government funds. The HHS interim final rule requires providers to offer medical and religious exemptions and does not cover staff who telework full-time. The effect of this ruling is that the HHS mandates can be enforced, pending a final disposition of the lawsuits that have been filed challenging the HHS’s authority to issue this mandate.

Keller Thoma will continue to monitor this situation, as well as other federal and state legislation and regulations with respect to COVID-19 as they become available. In the meantime, should you wish to discuss any of the above, please do not hesitate to contact your Keller Thoma attorney.

Categories: Case Alerts, KT

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