What’s Next for Mandatory Vaccination Policies Now that SCOTUS Has Blocked OSHA’s “Shot-or-Test” Rule?

By John S. Gannon - Skoler, Abbott & Presser, P.C.

January 14, 2022

Yesterday, the U.S. Supreme Court ruled against the Biden Administration in the back-and-forth legal battle over the OSHA Emergency Temporary Standard (“ETS”).  The ETS required larger employers to put policies and procedures in place that would have required workers to get vaccinated against COVID-19 or undergo weekly testing.  The decision was not particularly surprising, given the Court’s conservative majority.  Indeed, the six Republican appointed Justices agreed that OSHA exceeded its authority in issuing the ETS.  The majority wrote:

“Although COVID–19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases. Permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization.”

The three Justices appointed by Democratic Presidents disagreed.  They stressed that blocking the ETS would lead to the loss of tens of thousands of lives due to COVID-19.  Attacking the majority’s position that OSHA should not be regulating dangers that may also arise outside of the workplace, the dissenting Justices argued:

“OSHA has issued, and applied to nearly all workplaces, rules combating risks of fire, faulty electrical installations, and inadequate emergency exits—even though the dangers prevented by those rules arise not only in workplaces but in many physical facilities (e.g., stadiums, schools, hotels, even homes). . . .  A biological hazard—here, the virus causing COVID–19—is no different.”

So what’s next for mandatory vaccine rules? For starters, the ETS is not dead-at least yet.  The Court did not rule on the merits as to whether the ETS is legally unenforceable.  Instead, the Court reinstated the hold on OSHA’s ability to enforce the ETS while other litigation is pending elsewhere in lower courts.  It remains to be seen whether OSHA will continue with this litigation or withdraw the ETS entirely.  Even if OSHA is successful in lower courts, the ETS appears to be doomed once those cases reach the Supreme Court.

Second, what you may not know is that the Supreme Court also ruled on another vaccine mandate yesterday and reached a different conclusion.  As we have reported, the Centers for Medicare & Medicaid Services (CMS) issued an emergency rule requiring eligible employees of healthcare facilities that participate in the Medicare and Medicaid programs to be fully vaccinated.  The CMS vaccine mandate was upheld by the Court.  Unlike the OSHA ETS, there is no option for weekly testing under the CMS mandate.  Covered employees must be fully vaccinated by February 28, 2022.

There is a third vaccine mandate out there that involves federal contractors (and subcontractors).  That rule, like the OSHA ETS, is on hold nationwide.  This rule will likely reach the Supreme Court at some point.  Given the Court’s differing opinions on the OSHA ETS and CMS rule, it’s hard to predict how the Court will come down on that mandate.  Stay tuned for more details on that one.

Finally, the Supreme Court’s ruling does not limit an employer’s right to issue its own a mandatory vaccination policy.  That is still fair game.  It also does not impact mandatory vaccination rules issued at the state or local level.  The majority made that clear in the OSHA ETS decision, stating that “[t]here is no question that state and local authorities possess considerable power to regulate public health.”  This leaves the door open for governors and legislators in progressive states to issue vaccine mandate rules similar to or even broader than the OSHA ETS.  Given the deep political divide that seemingly strikes at the heart of mandatory vaccine rules, it would not be surprising if left-leaning states take matters into their own hands on this weighty and controversial issue.

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