OSHA ETS for vaccination and testing stayed by Supreme Court

ALERT: Supreme Court rules on vaccine mandates

January 18, 2022

The U.S. Supreme Court has ruled to send the vaccine-or-testing mandate back to the court of appeals. Find out what this means for employers with 100+ employees.

Recently, the U.S. Supreme Court issued two rulings regarding vaccine-or-testing mandates.

Compliance dates in the Emergency Testing Standard on Vaccination and Testing (ETS) first announced by the Occupational Safety and Health Administration (OSHA) in November 2021 are stayed by the Supreme Court. The Supreme Court has sent the ETS back to the appeals court to rule on the ETS’ merits. At this time, compliance by large employers is not required.

However, the Supreme Court lifted the stay on The Center for Medicare and Medicaid Services (CMS) vaccine mandate affecting federally funded healthcare providers. Affected providers will need to comply with the mandate.

What the OSHA ETS ruling means for large employers

With this ruling, large employers (100+ employees) do not currently need to comply with the OSHA ETS.

While the Supreme Court has stayed OSHA’s enforcement of the ETS and sent the ETS back to the appeals court for a decision on the merits of its legality, it is likely that any decision on the merits by the appeals court will be appealed back up to the USSC. Given the Supreme Court’s ruling on the stay, any appeal about the decision on the ETS’ merits will likely result in the ETS being struck down by the Supreme Court.

Employers may choose to pause their compliance preparations but should stay abreast of the situation until a final decision is made.

Mandate for federally funded healthcare providers

The Supreme Court has lifted the stay on the CMS mandate that affected providers in several states. With this ruling, the CMS mandate is now effective in all 50 states unless an appeals court rules on the merits of the CMS mandate. While the OSHA ETS is currently not being enforced for large employers, health care providers receiving federal funds will still be subject to the CMS vaccine mandate.

The CMS mandate required compliance with the first phase by January 27, 2022, and full vaccination by February 28. It’s currently unclear how these dates are affected by the Supreme Court’s decision to lift the stay. We encourage affected providers to implement the requirements of the mandate since the stay has been lifted.

In summary

While the OSHA ETS isn’t completely dead yet, we would be surprised to see the mandate enforced on its merits given the recent Supreme Court ruling. However, health care providers accepting federal funds need to ensure compliance with the CMS mandate. Do you have questions about compliance or COVID-19’s effect on your workers? Contact Carrie Cox using the information below.

Carrie Cox

Senior Consultant
HR & Org. Development Services

Carrie has experience in a variety of human resource functions, including labor laws, compensation structures, employee classification, benefits administration, performance management and human resource best practices. She has served clients in a number of industries, including manufacturing, construction, banking, government, and not-for-profits. Carrie is a member of the national and local chapters of the Society of Human Resource Professionals (SHRM) and serves on the Wichita chapter board of directors.

She is a certified practitioner for the Myers-Briggs Type Indicator® and the Hay Group’s Emotional and Social Competency Inventory. Her additional certifications include Certified Professional Coach from the Academy of Creative Coaching, Professional in Human Resources (PHR) from the Human Resource Certification Institute, and SHRM-CP designated by the SHRM.

NOTE: Any advice contained in this material is not intended or written to be tax advice, and cannot be relied upon as such, nor can it be used for the purpose of avoiding tax penalties that may be imposed by the IRS or states, or promoting, marketing or recommending to another party any transaction or matter addressed herein.

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