COVID-19 UPDATE: COURT STAYS OSHA ETS AND LIFTS CMS VACCINE MANDATE INJUNCTIONS

On January 13, 2022, the U.S. Supreme Court issued a stay of OSHA’s ETS obligating employers with 100 or more employees to require vaccination of their employees or alternatively require testing and masking of unvaccinated workers. As such, employers are not obligated to vaccinate their employees, require masks or testing unless a different federal, state or local law or executive order requires such actions. Employers may institute their own vaccination, testing and/or face covering policies so long as they comply with applicable law. The EEOC offers guidance on employer vaccination policies and procedures. Where a local or state law prohibits or restricts employers from requiring vaccinations or other protective measures for workers, employers must comply with those laws.

Notably, the Supreme Court lifted lower court injunctions blocking enforcement of the Centers for Medicare and Medicare Services (CMS) Interim Final Rule requiring healthcare worker vaccinations, which applies to hospitals, nursing homes, rehabilitation clinics and other facilities receiving Medicare or Medicaid funds. As such, all employers subject to the rule must comply with it.

In response to the Court’s OSHA ETS decision, OSHA issued a statement reminding employers of the obligation to protect workers under the General Duty Clause requiring employers to ensure the safety of workers in the workplace.  OSHA also reminds employers of their obligation to protect workers in high-hazard industries or work tasks in accordance with President Biden’s executive order issued on January 21, 2022. OSHA urges all employers to require vaccination or weekly testing to fight spread of the virus in the workplace. OSHA reminds employers that they have a responsibility to ensure the safety of workers in the workplace. OSHA provides guidance on mitigating and preventing the spread of COVID-19 in the workplace at https://www.osha.gov/coronavirus/safework.

The Supreme Court struck down the ETS, but the ETS also serves as a proposal for a permanent OSHA standard, meaning the ETS could potentially become a permanent rule.  OSHA has extended the comment period for a permanent rule to January 19, 2022.  Comments must be submitted to www.regulations.gov in Docket number OSHA-2021-0007.