By: Julie Pace, David Selden, and Heidi Nunn-Gilman
On Thursday, January 13, 2022, the Supreme Court stayed the OSHA COVID-19 vaccination or testing mandate for employers with 100 or more employees. This relieves large employers of the legal obligation to require employees to be vaccinated against COVID-19 or provide weekly negative COVID-19 testing. Employers, however, should still ensure that they are taking appropriate steps to prevent or limit the spread of COVID-19 in the workplace.
The Supreme Court majority in NFIB v. OSHA focused on the fact that “OSHA is tasked with ensuring occupational safety” and enforcing standards “reasonably necessary or appropriate to provide safe or healthful employment.” The Court concluded that the vaccination or testing mandate exceeded OSHA’s authority to set standards for workplace safety, and amounted to a broad public safety measure. Although COVID-19 can be contracted in the workplace, the Court found it was not an “occupational hazard” in most workplaces, but rather a more universal risk.
The Supreme Court affirmed OSHA’s authority to impose requirements in workplaces where COVID-19 poses a particular, occupational risk, such as in occupations where exposure to COVID-19 does result from the type of work, such as researchers working with the COVID-19 virus.
Justices Breyer, Sotomayor, and Kagan dissented, arguing that it is within OSHA’s authority to regulate workplace hazards, even if the same hazard exists in the general public and that the vaccination or testing mandate is necessary to protect workers.
In a separate decision, Biden v. Missouri, the Supreme Court upheld the rule issued by the Department of Health and Human Services that covered workers at facilities that receive Medicare or Medicaid money be vaccinated unless they are entitled to a medical or religious exemption. The Court concluded that the rule was within the authority of DHHS to impose conditions on the receipt of Medicare or Medicare that “the Secretary finds necessary in the interest of the health and safety of individuals who are furnished services.” Therefore, covered entities receiving Medicare or Medicaid funds must ensure that they are in compliance with the DHHS rules.
Although the Supreme Court stayed the vaccine or testing Emergency Temporary Standards, OSHA’s previous guidance and requirements for preventing COVID-19 at the workplace still apply. Companies should ensure that they have the policies, practices, and training in place that is required by existing OSHA safety standards. Our employment lawyers have experience in counseling employers and providing COVID-19 policies, updated OSHA-compliant pandemic plans, drafts of safety toolbox talks to use with employees, working with companies to document and engage in the interactive dialogues required by the ADA, and for religious considerations. For additional guidance, please contact Julie Pace, David Selden, or Heidi Nunn-Gilman.
