SCOTUS Halts Vaccine Mandate for Most U.S. Employers

The status of the OSHA “vaccine or test” mandate applicable to businesses employing 100 or more employees has been in limbo in the wake of judicial challenges and differing opinions from federal district and circuit courts. Earlier today, the United States Supreme Court resolved the dispute, after hearing oral arguments on the case last week.

Two “vax or test” mandates were at issue: The OSHA Emergency Temporary Standard (ETS) applicable to employers with 100 or more employees, and the Centers for Medicaid and Medicare Services interim final rule, which requires vaccination for most workers and health care facilities that receive Medicaid and Medicare funding.

As expected by most of we “armchair justices,” SCOTUS held that the Biden administration cannot enforce the OSHA mandate, meaning that employers with 100 or more employees do not need to require vaccination of employees in order to comply with a government rule. Employers of all sizes may still implement vaccination, testing, and masking requirements voluntarily, however. Nothing in the SCOTUS opinion impacts those business decisions of employers. In a 5-4 decision, the Court upheld the Medicare/Medicaid mandate.

The Court has not considered a separate mandate applicable to federal contractors – those businesses that provide goods or services to the federal government. That mandate has been blocked by a lower federal court.

So what happens now? Is this the end? Unless Congress passes a federal law requiring vaccination that would pass legal scrutiny – which is unlikely – the fight over the federal vaccine mandate appears to be over, at least from a regulatory perspective. If I had a crystal ball, I would bet that OSHA is not going to take a swing at implementing a similar rule that might survive legal scrutiny. The question remains: Will states take on the challenge and attempt to implement their own rules under the authority of applicable state government agencies? That is much harder to predict.

And what about employers who have already implemented vaccine mandates in reliance on the OSHA ETS or to ensure compliance with it? Should you maintain your policy or roll it back? What about blowback from employees on either side of the issue? Alas, there are no clear answers – and the “right decision” will vary from business to business. We’re here to help you navigate these choppy waters. In the meantime, we’ll keep an eye on the ever-changing COVID landscape and keep you up to date.