In the fall of 2021, the Occupational Safety and Health Association (OSHA) implemented regulations that would require nearly all employees of private employers with 100 or more employees to be either vaccinated against COVID-19 or subject to weekly testing for the virus. The regulations were challenged by a number of states and industry groups, which resulted in a stay, or a hold, being placed on the regulations by various U.S. Circuit Courts of Appeal. See our earlier Legal Alert on the topic. Thereafter, the appeals were consolidated and the Sixth Circuit Court of Appeals lifted the stay.
Yesterday, in two separate cases, the Supreme Court reimposed the stay of the OSHA regulations but also lifted a stay that applied to a separate vaccination mandate for certain employees in the health care industry. The Court’s ruling effectively puts the OSHA requirements on hold for the foreseeable future and most likely permanently.
To read more about the Court’s OSHA decision, see Jackson Lewis’ U.S. Supreme Court Stayed OSHA’s Vaccine-or-Test Mandate for Employers with 100 or More Employees.
To read more about the Court’s healthcare vaccination decision, see Jackson Lewis’ U.S. Supreme Court Turns Centers for Medicare & Medicaid Services COVID-19 Vaccine Rules Back On.
While the Court’s OSHA decision limits the federal government’s ability to mandate vaccines and routine testing in the workplace, at least for now, some jurisdictions, including New York City, have implemented their own vaccine and/or testing requirements that remain in effect. See Littler’s Mandatory Employee Vaccines – Coming to A State Near You?
What Does This Mean for Employers?
While for now the federal government has been limited in its ability to mandate COVID vaccines and testing, at least outside of the health care industry, employers can still choose to implement their own safety protocols in their workplace, which can include routine testing or vaccination requirements. Employers will need to ensure that they are following the regulations in the jurisdictions in which they do business. For some suggestions on how to approach the ever-changing COVID landscape, please read Fisher Phillips’ Supreme Court Strikes Down OSHA’s Vaccine ETS: An Employer’s 6-Step Priority List.
Please contact your local Pro Bono Partnership office if you have any further questions.
Thank you to the law firms of Jackson Lewis, Littler, and Fisher Phillips for their insights.
This document is provided as a general informational service to volunteers, clients, and friends of Pro Bono Partnership. It should not be construed as, and does not constitute, legal advice on any specific matter, nor does distribution of this document create an attorney-client relationship.