By: Jessica Waltman, Forward, Principal Health Consulting
On January 13, 2022, the Supreme Court of the United States (SCOTUS) voted to block the continued enforcement of the federal Occupational Safety and Health Administration’s Emergency Temporary Standard (ETS) requiring large employers to either require all employees to obtain their COVID–19 vaccinations or submit to weekly virus testing. In the 6-3 decision in National Federation of Independent Business v. Department of Labor, the majority of justices noted that the ongoing challenge to the ETS working its way through the federal court system is likely to succeed, since the legislation that the Biden Administration is using to justify the measure only “empowers the Secretary to set workplace safety standards, not broad public health measures… Permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization.”
Based on the ruling, businesses with more than 100 employees do not need to continue enforcing the ETS requirements at the present time. Instead, according to SCOTUS, enforcement of the ETS will remain on hold until the resolution of the ongoing federal litigation. However, it is important to note there is nothing in this ruling preventing employers of any size from establishing a voluntary vaccination and/or testing requirement. If any business decides to continue to move ahead with vaccination or testing requirements, they just need to abide by existing federal privacy and non-discrimination rules. OSHA has many FAQs available to help provide compliance guidance.
In addition to releasing their decision on the large employer mandate, SCOTUS ruled on a challenge to the federal government’s mandate that employees at health care facilities that receive federal funding (such as Medicare or Medicaid) receive their COVID–19 vaccinations unless they have a valid religious or medical exemption. The Court voted 5-4 in the case of Biden v. Missouri to allow the healthcare worker vaccination requirement to continue while ongoing legal challenges work their way through the lower federal courts. In the ruling, the majority notes, “Congress has authorized the Secretary to impose conditions on the receipt of Medicaid and Medicare funds that ‘the Secretary finds necessary in the interest of the health and safety of individuals who are furnished services.’ COVID–19 is a highly contagious, dangerous, and—especially for Medicare and Medicaid patients—deadly disease. The Secretary of Health and Human Services determined that a COVID–19 vaccine mandate will substantially reduce the likelihood that healthcare workers will contract the virus and transmit it to their patients…The rule thus fits neatly within the language of the statute.”
While the short-term future for business owners and federally funded healthcare worksites is now clear regarding federal vaccination requirements, SCOTUS’ most recent actions are not the final word on either regulation. The legal challenges to both requirements will continue in the lower courts, and depending on how they are ultimately resolved, the status of current federal vaccination requirements may change again. We will continue to monitor developments regarding federal COVID–19 vaccination requirements and bring any additional information to you as it becomes available.