Stop and Go — Supreme Court Halts Some (but Not Other) Employee Vaccine Mandates

January 13, 2022

Latest update in series:
What’s Next for Employers After the Supreme Court’s Vaccine Rulings? (January 14, 2022)

Related webinar replays:
OSHA ETS Employee COVID-19 Vaccination and Testing Mandates New Requirements, Tips and Traps for Large Employers (November 10, 2021)
COVID-19 Employee Vaccine and Testing Mandates New Requirements for Large Employers, Federal Contractors and Healthcare Organizations (September 16, 2021)

On Jan. 13, 2022, the U.S. Supreme Court granted an emergency request for relief regarding one of the two Biden administration COVID-19 employee vaccine mandates on appeal before the Court:

  1. Halted – The Occupational Safety and Health Administration’s (OSHA) emergency temporary standard (ETS), which requires employers with 100 or more employees to mandate COVID-19 vaccination for covered employees or to test unvaccinated employees weekly.

Specifically, the Court granted the applicants’ request for an emergency stay of the ETS, finding that such parties were likely to prevail in their argument that “OSHA’s mandate exceeds its statutory authority and is otherwise unlawful.”

  1. Not Halted – The Centers for Medicare & Medicaid Services (CMS) interim final rule, which requires mandatory COVID-19 vaccination for healthcare workers at certain CMS-covered facilities (i.e., with no testing option, except for approved accommodations).

Specifically, the Court stayed prior lower court orders granting a preliminary injunction of the CMS interim rule pending disposition of the government’s appeal.

Such action follows a flurry of litigation regarding both requirements, including a prior stay of the ETS by the U.S. Court of Appeals for the Fifth Circuit; lifting of the ETS stay by the Sixth Circuit; a stay of the CMS rule by U.S. District Courts in Louisiana, Missouri and Texas; and partial lifting of the CMS rule stay for some states by the Fifth Circuit.

The practical effect of the Supreme Court rulings in National Federation of Independent Business v. Department of Labor and Biden v. Missouri is that:

  • Federal implementation of the ETS is effectively suspended. For now, employers are not required by federal law to move forward with the written policy and other deadlines effective Jan. 10 and Feb. 9, 2022 for the ETS.
  • Federal implementation of the CMS interim rule remains active/ongoing in all 50 states plus territories, with Jan. 27 and Feb. 28, 2022 deadlines for Phase 1 and Phase 2 implementation. For further information about CMS’ enforcement discretion notice previously issued regarding the interim rule, see here.

The Supreme Court’s emergency stay in National Federation of Independent Business v. Department of Labor adds to the previous nationwide injunction issued by the U.S. District Court for the Southern District of Georgia on Dec. 7, 2021, which effectively stayed enforcement of the administration’s separate Sept. 9, 2021 Executive Order 14042 vaccine mandate for certain covered federal contractors and subcontractors.

However, the current ETS stay does not enjoin the separate rules and timelines regarding federal site access vaccination requirements under EO 13991 and Safer Federal Workforce Task Force Agency Model Safety Principles (which remain in effect and were not under review by the Supreme Court).

McGuireWoods will provide additional analysis of the Supreme Court’s actions after further review. In the meantime, for questions about the OSHA ETS, CMS interim rule or the requirements of other COVID-19 mandates, please contact the authors of this article, your McGuireWoods contact, or a member of the firm’s labor and employmenthealthcare, affirmative actionfederal contracting  or COVID-19 response teams.