US Supreme Court Stays OSHA ETS Applicable to Employers with 100 or More Employees, CMS Mandate Allowed to Take Effect


Through an unsigned opinion issued on January 13, 2022, the United States Supreme Court stayed the enforcement of the Emergency Temporary Standard (ETS) published by the Occupational Safety and Health Administration (OSHA) on November 5, 2021, until lower courts finally rule on its viability.  The ETS would require employers to mandate COVID-19 vaccines as a condition of employment, or allow employees to provide proof of a negative COVID-19 test result on a weekly basis.  Many employers fear that implementation of the ETS may lead to a mass exodus from the workforce, further frustrating issues employers are experiencing while trying to attract employees in an already limited workforce.

As noted in the opinion, shortly after OSHA published the ETS, challenges were filed across the country.  The Fifth Circuit acted first and issued a stay prohibiting OSHA from implementing or enforcing the ETS until the case could be heard on its merits.  Through a lottery process, the case was assigned to the Sixth Circuit Court of Appeals, which overturned the stay allowing the ETS to take effect.  At that time, OSHA announced that implementation of portions of the ETS would begin on January 10, 2022, while testing requirements would not be enforced until February 9, 2022.  Ultimately, the Supreme Court accepted the case and heard oral arguments on January 7, 2022.

The Court noted twice in its opinion that the challengers to the ETS were likely to prevail on the merits.  Given the expense the ETS would have caused to employers, the Court reinstated the stay and remanded the case back to the Sixth Circuit to hear the case on the merits.  Regardless of the decision rendered by the Court of Appeals, the opinion likely will be appealed again to the Supreme Court for full analysis.

In response to the Supreme Court ruling, Secretary of Labor Marty Walsh issued a statement urging employers to require vaccinations or weekly testing despite the status of the ETS.  He also stated that regardless of the ultimate outcome, OSHA intends to hold employers accountable for protecting workers from the pandemic by utilizing the recently announced COVID-19 National Emphasis Program and the General Duty Clause contained in the Occupational Safety and Health Act.  However, Secretary Walsh’s statements are not legally binding on employers and are tantamount to prior “guidance” issued by OSHA during the pandemic which employers had no  legal obligation to follow.

Employers may breathe easy for the time being as the agency is unable to implement or enforce the ETS while the case is considered by the lower court.  However, this does not mean that employers do not have any duty to protect workers from COVID-19 exposure in the workplace.  Employers should continue to take reasonable efforts to protect employees from the virus in the workplace.  That said, employer obligations may likely not include implementation of vaccine mandates or weekly testing requirements.


Conversely, the Supreme Court also rendered a decision on the Secretary of Health and Human Services’ vaccine mandate requirement for employers who receive Medicare and Medicaid funds.  Commonly referred to as the “CMS rule,” as a requisite for receiving Medicare and/or Medicaid reimbursements, covered employers are required to mandate that all employees become vaccinated absent a religious or disability-related accommodation and there is no testing requirement under the CMS rule.  Although no determination was made by the Court on the merits of this case either, the Court determined that the agency is allowed to implement and enforce the rule while challenges are heard in lower courts.  Accordingly, employers subject to the CMS rule should continue to comply with its requirements.

The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for over sixty years and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.

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Tim represents management in all areas of labor and employment law.