US Supreme Court Blocks OSHA ETS for Large Employers, But Allows Vaccination Requirements for Healthcare Workers | Haynsworth Sinkler Boyd, Pennsylvania



The U.S. Supreme Court has issued a stay against OSHA’s Emergency Temporary Standard (ETS) for employers with 100 or more employees. The ETS requires covered employers to implement a COVID-19 policy that 1) requires employees to be vaccinated or 2) gives employees the choice between being vaccinated or wearing a face covering and getting tested every 7 days .

Since its publication on November 5, 2021, the ETS has been embroiled in a number of legal challenges across the country. 5and Circuit issued a nationwide reprieve against him on November 12, 2021. The 6and Circuit lifted this stay on December 17, 2021, allowing ETS to move forward. OSHA announced that covered employers will be required to implement their policies by January 10, 2022 and must begin testing unvaccinated employees by February 9, 2022. Today’s decision by OSHA Supreme Court reinstates temporary stay on ETS pending full review by 6and Circuit or full reconsideration by the Supreme Court if one is requested.

The Court, however, authorized the adoption of a rule requiring that health care workers be vaccinated. The Centers for Medicare and Medicaid Services (CMS) issued a rule on Nov. 4, 2021, that requires healthcare providers participating in Medicare and Medicaid programs to require staff to be vaccinated. The CMS rule has also faced legal challenges and, until today, has been blocked in 25 states. However, today’s Supreme Court ruling lifts the temporary injunction in those states and allows the rule to go forward. The CMS announced on December 28, 2021 that covered employers must require their staff to receive the first dose of a COVID-19 vaccine by January 27, 2022, and that all staff must be fully vaccinated by January 28. February 2022.

With the Supreme Court’s decision to reinstate the OSHA ETS suspension, employers do not have to comply with the ETS at this time. However, many employers covered by the ETS may have already implemented a policy, as they were required to do so by January 10, 2022. Employers who have already implemented a policy should consult legal counsel to determine s they need to revise their current policy. For employers who don’t have a policy in place, it’s still a good idea to keep an eye out for what’s new.

Healthcare employers covered by the CMS Vaccine Rule should begin work on a vaccination policy to comply with the schedule announced by CMS, which requires all staff to receive their first dose by January 27, 2021. CMS does not has not announced whether they will extend this deadline to give employers more time to comply.

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