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Supreme Court Blocks OSHA ETS but Upholds CMS Rule Requiring COVID-19 Vaccination

January 14, 2022


On Thursday, the Supreme Court of the United States struck down the Occupational Safety & Health Administration (“OSHA”) Emergency Temporary Standard (“ETS”) on Vaccination and Testing but upheld a stricter Center for Medicare & Medicaid (“CMS”) rule.

The OSHA ETS directed private employers with 100 or more employees to require employees to be vaccinated against COVID-19 or undergo weekly testing and wear a face covering. The Court said OSHA had exceeded its authority by passing the ETS, which would have required the vaccination of over 80 million Americans. The ETS was scheduled to take effect on January 10, 2022, but with the Court’s ruling, the ETS will not take effect.

The CMS rule, however, remains in effect. The CMS rule requires health care employees at hospitals, nursing homes, and other facilities that participate in Medicare and Medicaid to be fully vaccinated unless they have been granted a religious or medical exemption. The CMS rule does not provide the option to regularly test employees who choose not to be vaccinated and does not require testing for unvaccinated employees granted an exemption. Covered healthcare workers cannot opt out of vaccination by electing to get a weekly test.

Employers to whom the ETS would have applied may continue to implement policies to protect their employees and customers, but there is no federal requirement related to vaccination or testing. Furthermore, the Supreme Court’s decision addressed only the OSHA ETS and CMS rule, not any state or local laws that require vaccination, masking, or other measures aimed at reducing the spread of COVID-19. For example, on January 7, the Illinois Department of Labor (IDOL) promulgated a rule adopting the broad contours of the OSHA ETS for many Illinois employers and New Jersey has passed laws requiring vaccination or testing of workers in schools and child care facilities, health care facilities, high-risk settings, and state agencies, authorities, and colleges and universities..

Montgomery McCracken’s Labor and Employment attorneys regularly advise employers on complying with federal, state, and local regulations. If you have any questions about rules regarding COVID-19 vaccines, testing, or masking for your employees, we are available to assist.