On September 9, 2021, President Biden directed the Occupational Safety and Health Administration (OSHA) to develop a rule to increase the number of workers who have received a COVID-19 vaccination.  Consistent with that direction, OSHA developed an Emergency Temporary Standard which would apply to employers with more than 100 employees.  On November 4, 2021, OSHA issued an Emergency Temporary Standard, (the “ETS”), requiring that all employees of employers with 100 or more employees either be vaccinated or be tested on a weekly basis and to have a negative test before coming to work.  The ETS was immediately challenged in court and, after a series of rulings blocking and then unblocking the ETS, on January 13, 2022, the Supreme Court finally weighed in, striking down the ETS. 

What does the Supreme Court’s decision mean?

  1. First, for those employers with more then 100 employees who have not implemented a vaccination and/or testing mandate for their employees, the Supreme Court’s ruling allows them to continue to decide for themselves whether or not they wish to implement such a policy without worrying about fines and/or penalties from OSHA.  For those employers concerned about losing employees as a result of a mandate, concerned about the administrative time and expense connected with enforcing such a mandate, or with philosophical or political objections to such a mandate, the Supreme Court’s decision will be welcome news.
  2. Second, the Supreme Court’s decision did not render any private or public employer’s vaccination mandate unenforceable or illegal.  If an employer chooses to require vaccination, with or without a testing option, they are still permitted to do so.  Many employers voluntarily implemented vaccination mandates using the ETS as a justification—if they do not rescind their policies, they may remain in effect.
  3. Finally, the Supreme Court did not strike down the vaccination mandate for employers receiving Medicaid or Medicare funds.  In a separate decision, the Supreme Court upheld that requirement.  As a result, if an employer is required to have an employee vaccination policy pursuant to another Executive Order, federal agency requirement, state law or regulation, or local law or regulation, that requirement would still be in effect.

If you have questions about how the Supreme Court’s decision affects your business or whether your business should implement a vaccination policy regardless, please contact us at (410) 522-1020 to set up an appointment to discuss how your policies can be structured to meet your company’s goals.  

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