OSHA’s Emergency Temporary Standard (ETS) requiring COVID-19 Vaccines Blocked by Supreme Court

On Thursday, January 13, the U.S. Supreme Court issued 2 decisions related to the Biden Administration’s push to require vaccines against COVIA-19 for the U.S. workforce. First, the Court stopped the enforcement of OSHA’s Emergency Temporary Standard (ETS) that mandated that employers with 100 or more employees to require vaccines, or require weekly testing of those not vaccinated. The OSHA ETS took effect on January 10, 2022, but was halted by the Supreme Court decision. The Court stated that OSHA must have clear authority from Congress before implementing such a broad and wide rule (affecting an estimated 84 million workers). Read more (NFIB v. OSHA).

However, the Supreme Court refused to stop enforcement of the Biden rule withholding Medicare and Medicaid funding from medical facilities that do not ensure that their staff is vaccinated against COVID-19 (unless exempt for medical or religious reasons). The Department of Health and Human Services (HHS), which administers Medicaid and Medicare, has a core function of protecting patients’ health and safety, so the mandatory vaccine rule could be a reasonable exercise of its authority. Read more (Biden v. Missouri).

The vaccine mandate for federal contractors was not addressed in either of these decisions. That Presidential executive order was halted by several federal courts because there is a question about whether the law that gives the President authority to promote economy and efficiency in federal contracting, can justify a vaccine requirement.

As things stand today, the OSHA ETS mandate for vaccines or testing at large employers is not enforceable, but the HHS mandate for vaccines of staff at medical facilities receiving Medicare and Medicaid reimbursement is enforceable.

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