In latest edition of The Wright Toolbox:
- Aftermath of the Supreme Court’s Vaccination Rulings – read now
- OSHA Withdraws Vaccine Mandate for Large Private Employers – read now
Aftermath of the Supreme Court’s Vaccination Rulings
By Paul Evelius
On January 13, the U.S. Supreme Court blocked the Biden Administration’s attempt, through an Occupational Safety and Health Administration (OSHA) rule, to force large private employers to impose a COVID-19 vaccine-or-test policy on their workers. The Court deemed the rule to be outside OSHA’s enforcement authority, reasoning that COVID-19 relates less to the work-related dangers and occupational diseases that are within OSHA purview than it does day-to-day public health dangers (such as crime, air pollution, and many communicable diseases) that are not peculiar to the workplace.
Simultaneously, however, the Court upheld a Centers for Medicare and Medicaid Services (CMS) rule that imposes mandatory COVID-19 vaccination on workers at certain federally funded healthcare facilities.
The Court’s rulings are not generalized judgments on the propriety or legality of mandatory COVID-19 vaccination policies. They address only whether Congress gave OSHA and CMS the authority to adopt the rules at issue. Put another way, the rulings neither endorse nor undermine measures, including mandatory vaccination, that private employers may choose to implement in the COVID-19 fight.
Nonetheless, employers implementing such measures must consider various federal and state laws in doing so. Those laws include, for example, the Americans with Disabilities Act and Title VII of the Civil Rights Act of 1964, as well as various state laws regulating vaccination policies. Only a well-crafted plan will ensure compliance with applicable law. If you have questions on how to do so in a way suited for your business, I can be contacted at email@example.com.
OSHA Withdraws Vaccine Mandate for Large Private Employers
On January 26, 2022, OSHA formally withdrew its large private employer vaccine mandate in the wake of the recent Supreme Court ruling outlined above. As you are no doubt aware, on November 5, 2021, OSHA adopted an emergency temporary standard (the Vaccination and Testing ETS), under sections 4, 6(c), and 8 of the Occupational Safety and Health Act of 1970 (29 USC 653, 655(c), 657), requiring certain vaccination related protocols for employees of large employers (100 or more employees). The Vaccination and Testing ETS required covered employers to develop, implement, and enforce a mandatory COVID–19 vaccination policy, with an exception for employers that instead adopted a policy requiring employees to either get vaccinated or elect to undergo regular COVID–19 testing and wear a face covering at work in lieu of vaccination. Upon implementation various legal challenges were asserted to the Vaccination and Testing ETS and it was enjoined by the United States Court of Appeals for the 5th Circuit. A short time later the United States Court of Appeals for the 6th Circuit removed the stay. However, challenges were then asserted in the Supreme Court.
On January 13, 2022, the U.S. Supreme Court stayed the Vaccination and Testing ETS, finding that challengers were likely to prevail on their claims opposing the mandate. Nat’l Fed’n of Indep. Bus. v. Dep’t of Labor, 595 U.S. __, __ (2022) (per curium) (slip op. at 5, 9). OSHA has now stated that after evaluating the Court’s decision, effective immediately OSHA is withdrawing the Vaccination and Testing ETS as an enforceable emergency temporary standard.
If you need any assistance with vaccine standards please contact any member of our Labor and Employment Practice Group.