Supreme Court Blocks OSHA’s Vaccine-or-Test Mandate but Allows CMS Vaccination Mandate for Most Health Care Workers

Today, the Supreme Court blocked the Biden Administration's vaccine-or-test mandate for large employers, known as the Emergency Temporary Standard ("ETS"), which we wrote about here. The Court held that the federal agency that issued the ETS, the Occupational Safety and Health Administration ("OSHA"), has authority to regulate workplace safety issues, but not to regulate public health more broadly. A 6-3 majority of the Court ruled that the vaccine-or-test mandate ventured into the latter and thus exceeded OSHA's authority. At the same time, the Court ruled that regulations applicable to recipients of Medicare and Medicaid funds - most health care providers - were within the agency's authority, and could lawfully require vaccination of those providers' employees.

The Court's ruling does not put the final nail in the coffin for OSHA's ETS, but it does increase the likelihood that it will one day be buried for good. For now, the Court's ruling means that non-health care employers with 100 or more employees need not implement a vaccine-or-test policy that complies with the ETS. However, some states have implemented vaccine requirements for certain employees (for example, health care workers in Oregon and Washington), and private employers - of any size - may, of course, choose to adopt such a policy. But they are no longer required to do so by the federal government.

Recipients of Medicare and Medicaid funds must comply with the federal regulations requiring vaccination of employees, without a testing alternative (with some exceptions for employees with disabilities or religious beliefs that preclude vaccination). We recommend that any employer considering a mandatory vaccine policy consult with employment counsel.

At this moment, state governments - such as Oregon and Washington - have not finalized broad vaccine mandates for private employers other than the targeted requirements that had already been issued such as for health care workers. While the state agencies may still issue more far-reaching vaccination mandates, the Supreme Court's decision today may take some wind out of those sails.

Finally, the Supreme Court's decision raises questions about the Biden Administration's requirement that federal contractors adopt a vaccine-or-test mandate similar to the ETS, which is still being litigated. Stay tuned for updates.