Employers that have complied with the OSHA mandate can continue to enforce the vaccine-or-test requirement. The Supreme Court decision does not prohibit that policy.

Background

Last fall, the Centers for Medicare & Medicaid Services issued an emergency regulation requiring healthcare workers at hospitals and other facilities that participate in the Medicare and Medicaid programs be vaccinated by January 4, 2022.

In addition, under an emergency temporary standard issued by OSHA last fall, all private sector employers that have 100 or more employees are required by January 4, 2022 to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. It also applies to local and state government employers in states that have worker safety agencies that cover public sector employees.

We discussed these mandates in our November 9, 2021 insight, “Vaccine Mandate for Employers with 100+ Workers.”

Several businesses and states immediately filed a lawsuit challenging the rule that applies to employers with 100+ employees. In November 2021, the United States Court of Appeals for the Fifth Circuit issued an order staying the rule pending further action by the court.

The Supreme Court decisions

The vast scope of the OSHA mandate appeared to be the primary objection of the court’s majority. According to the decision, “It is telling that OSHA, in its half century of existence, has never before adopted a broad public health regulation of this kind — addressing a threat that is untethered, in any causal sense, from the workplace.”

The majority refused to accept the principle that the vaccine mandate was an occupational regulation within the jurisdiction of OSHA.

The dissent, which includes more detailed statutory analysis, found the mandate squarely within the jurisdiction of the statute; it noted OSHA “did what Congress commanded it to: It took action to address COVID-19’s continuing threat.”

The OSHA vaccine mandate will remain on hold while the U.S. Court of Appeals for the Sixth Circuit considers further arguments at issue in the case.

On the same day, the justices agreed to allow enforcement of a rule that requires healthcare workers at facilities that participate in the Medicare and Medicaid programs to be fully vaccinated against COVID-19 unless they qualify for a medical or religious exemption. A majority of the justices found the mandate consistent with HHS’s rules requiring providers to comply with conditions in order to receive Medicare and Medicaid funding. Four justices — Thomas, Alito, Gorsuch and Coney Barrett — dissented, arguing again that the mandate exceeded the statutory authority of HHS.

Implications for employers

Employers of healthcare workers must continue to comply with the vaccination standards for healthcare workers.

The Supreme Court ruling has no bearing on whether other employers can impose a vaccine mandate on their workforces. Moreover, employers should not read into the decision a lack of support for vaccines, workplace vaccine requirements or meaningful public health measures. Employers considering a vaccine mandate can look to a variety of resources in deciding on how to implement that rule, including state and local laws and equal employment laws.