In an unsigned opinion, the Supreme Court has issued a stay of the Occupational Health and Safety Administration (OSHA) COVID-19 vaccine or testing mandate on employers with 100 or more employees pending further litigation. As a practical matter, this stay will likely put an end to the requirement entirely as ongoing litigation at the appellate level will last for many months and the Supreme Court has clearly signaled opposition to the mandate as structured.
As a result of this decision, employers who began enforcing the OSHA mandate on January 10th are no longer obligated to do so.
The court also issued a ruling allowing a similar vaccination requirement for healthcare workers to go into effect. The HHS rule invoked specific authority under Federal law that allows the Secretary of Health and Human Services to implement rules for facilities that receive Medicare or Medicaid funding which “the Secretary finds necessary in the interest of the health and safety of individuals who are furnished services.” Since most healthcare facilities receive Medicare or Medicaid funding, the rule applied to approximately 20 million healthcare workers nationwide.
The HHS rule had previously been stopped through injunctions by lower courts, the Supreme Court ruling now stays those injunctions allowing the rule to go into effect pending disposition of those cases. Much like the OSHA mandate, the outcome of those cases is now effectively moot since the Supreme Court has signaled its approval of the HHS mandate.
However, all action on COVID-19 vaccine mandates is not federal. Numerous state and local governments have passed laws or implemented rules requiring certain groups of individuals to be vaccinated or conversely prohibiting employers, schools, or other entities from requiring vaccinations. Federal preemption would override any state prohibitions of vaccine mandates for healthcare providers under the HHS mandate or federal contractors under executive orders. Conversely, employers who wish to impose their own mandates should be cognizant of state laws which either outright prohibit mandates (MT and TN) or require various exemptions (AL, AR, FL, IA, KS, ND, UT and WV).
About the Authors. This update was prepared by HR Pros, LLC, a national HR consulting firm that helps companies reduce operational and employment related risks. Contact Christopher Brown (cbrown@hrpros.biz) or Philip Roach (philipcr@hrpros.biz) for more information.
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