Supreme Court Strikes Down OSHA ETS

January 13, 2022

By: Mary E. Funk

After hearing oral arguments on Friday, January 7, this afternoon the U.S. Supreme Court issued a decision on the merits of the constitutionality of OSHA’s Emergency Temporary Standard (“ETS”) related to mandatory vaccination and testing for workplaces with 100 or more employees.  The Court ruled the ETS in its current form is a “blunt instrument” that is overly broad and not narrowly targeted to workplace hazards, as opposed to the same hazard COVID-19 poses to all members of society, and which may differ by industry and occupation. The Court has granted a nation-wide injunction that stays OSHA’s ETS pending a determination on the merits by the Sixth Circuit Court of Appeals.


Businesses with the requisite number of employees scrambled to comply with the first phase of the ETS when it went into effect this past Monday, January 10. This necessitated having a written policy requiring mandatory vaccines, with some legally-required exemptions for sincerely held religious beliefs or a medical reason; determining and maintaining a record of employees’ vaccination status; providing educational materials to employees regarding the ETS and vaccines; and requiring unvaccinated employees to mask up.  Phase two, mandatory weekly testing for the unvaccinated, was to have been required beginning February 9, 2022.  The Court’s ruling means the ETS returns to limbo and neither federal or state safety agencies are authorized to enforce it. 


This does not mean, however, that employers, regardless of size, can be cavalier about their safety protocols.  For Iowa employers, the Iowa Labor Commissioner stated last week that it did not intend to enforce the federal ETS, and presumably would be rolling out its own plan to ensure workplace safety amid the ongoing pandemic.



CMS Mandates Back in Place – Including in Iowa


For Iowa healthcare employers, the most significant news from the Supreme Court today is its decision to lift the stays that had been in place in 25 states with respect to the vaccine mandate from the Centers for Medicare & Medicaid Services (CMS).  The Supreme Court held that the Secretary of Health and Human Services, who administers the Medicare and Medicaid programs, did not exceed the authority Congress conferred on him by conditioning the receipt of such funds on compliance with a vaccine mandate aimed at substantially reducing the likelihood that healthcare workers will contract the virus and transmit it to patients.


To the extent healthcare facilities had put their vaccine plans and policies on hold, it is now time to reinstitute or begin immediate compliance.  All healthcare facilities that participate in Medicare and Medicaid must require all covered staff members, which is not limited to direct care providers, be vaccinated unless they have an approved exemption based on a religious or medical reason.  The CMS mandate does not require nor provide for testing as a component of the plan.  However, an employer may choose to implement testing as a possible accommodation for an employee with an approved vaccine exemption.  The CMS mandate leaves it to individual employers to determine how best to accommodate employees and mitigate the spread of COVID-19.


In the meantime, while awaiting the Supreme Court’s decision, CMS recently issued guidance regarding how it intends to enforce the Interim Final Rule mandating vaccinations.  This may be news to employers where the mandate had been enjoined.


Beginning January 22, 2022, covered facilities must be able to show they have developed and implemented compliant vaccination policies and that all staff have had at least one dose of a COVID-19 vaccine or have been granted or have pending an exemption request.  Enforcement action will not occur for sixty additional days, if the facilities can show they are 80% or more compliant and have a plan to achieve full compliance.


By February 28, 2022, all covered staff must be fully vaccinated or have an exemption.  Enforcement of this phase will extend to an additional 30 days if the facility can show it is 90% in compliance by February 28.


By March 28, 2022, all facilities must be 100% compliant – meaning all covered employees are fully vaccinated or have been granted a limited exemption – and be required to abide by any appropriate mitigating measures.



Federal Contractor Mandate Still Enjoined


The Supreme Court did not have before it any case dealing with the federal contractor vaccine mandate. That mandate remains stayed in all states.


For more information about the current status of vaccine requirements, please reach out to a member of the Nyemaster Labor & Employment team.