On January 13, the US Supreme Court reinstated the stay of the Occupational Safety and Health Administration's (OSHA) Emergency Temporary Standard mandating that employers with 100+ employees require COVID-19 vaccination and/or testing of employees (the OSHA ETS), pending further review before the US Court of Appeals for the Sixth Circuit. The Supreme Court's decision means that, at least for now, employers are not obligated to comply with the OSHA ETS.
See our previous updates: Q&A – A Closer Look at OSHA's Vaccination Requirement for Employers With 100+ Employees, Update on OSHA's Vaccination Requirement for Employers With 100+ Employees and OSHA Reinstates Vaccination Requirement for Employers With 100+ Employees for an explanation of the OSHA ETS and the subsequent developments.
The Supreme Court's ruling is not the final word on whether the OSHA ETS ultimately will take effect — we will need to await the Sixth Circuit's ruling and any further Supreme Court review of that ruling to reach finality on enforceability. Nor does this decision affect COVID-19 vaccination and testing requirements at the state and local levels that operate independent of the OSHA ETS. For example, the New York City Executive Order mandating that all private employers require their employees to have at least one dose of a COVID-19 vaccine on or before December 27, 2021 in order to be present in the workplace remains in effect.
Katten attorneys will continue to monitor the legal challenges to the OSHA ETS, the Biden Administration's response to those legal challenges and vaccination requirements at the state and local levels, as well as inform clients of future developments that may affect OSHA's ability to implement and enforce the vaccine and testing requirement.
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