Yesterday the United States Supreme Court stayed OSHA’s Emergency Temporary Standard (the “ETS”) that applied to employers with 100 or more employees (see our previous alert on the ETS here). The Court’s opinion can be found here. The ETS required covered employers to institute either a mandatory COVID-19 vaccination policy subject to certain legal exemptions or a policy that encouraged COVID-19 vaccination but permitted testing and masking for employees who object to vaccination. The case will go back to the Sixth Circuit Court of Appeals for a decision on the merits but we suspect that given yesterday’s decision, the OSHA ETS as originally formulated will not be upheld. The Supreme Court’s opinion acknowledged that OSHA could potentially impose ETS-like restrictions on certain workplaces, including those with “particularly crowded or cramped environments”, but whether a new emergency standard will be issued remains to be seen. Notwithstanding the Supreme Court’s decision, employers are able to continue to impose the ETS requirements voluntarily provided they adhere to the ETS provisions and allow for certain exemptions/accommodations to vaccination and/or masking under applicable law.
In a separate opinion yesterday, the Supreme Court declined to stay the COVID-19 vaccine mandate imposed on healthcare facilities that receive Medicare and Medicaid funding by the Centers for Medicare & Medicaid Services (“CMS”). The decision is available here. Accordingly, Medicare and Medicaid funded facilities such as hospitals, long-term care and nursing facilities and ambulatory surgical centers, must ensure that employees are vaccinated against COVID-19 on or before February 28, 2022 unless an employee qualifies for an exemption/accommodation permitted by law and adheres to other safety requirements. Similar to the ETS, the CMS cases reviewed by the Supreme Court were sent back to the Fifth and Eighth Circuit Courts of Appeals for decisions on the merits.
As always, we are here to advise on these evolving matters and answer any questions employers may have about updating vaccination or vaccination/testing policies in light of the ETS stay and CMS rule. Should you have any questions, please contact Eaton Peabody Labor and Employment Practice Group attorneys Sarah Newell (snewell@eatonpeabody.com), Matt Raynes (mraynes@eatonpeabody.com), Katie Porter (kporter@eatonpeabody.com) or Jack Bjorn (jbjorn@eatonpeabody.com) for additional assistance.