Contents of this update were provided by NAPEO

On Thursday, January 13, the US Supreme Court issued an order temporarily blocking OSHA’s COVID-19 vaccine mandate.  This mandate was known as the ETS rule or Emergency Temporary Standard, which would require any organization with 100 or more employees to receive the COVID-19 vaccine or participate in weekly testing. You can read the original summary here.

The following are the words from the court, which can also be found in their full opinion here:,

• “The Secretary has ordered 84 million Americans to either obtain a COVID–19 vaccine or undergo weekly medical testing at their own expense. This is no “everyday exercise of federal power.” (citation omitted) It is instead a significant encroachment into the lives—and health—of a vast number of employees.”
• “The question, then, is whether the [OSH] Act plainly authorizes the Secretary’s mandate. It does not. The Act empowers the Secretary to set workplace safety standards, not broad public health measures. (citation omitted)”
• “Although COVID– 19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases. 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.”
• “That is not to say OSHA lacks authority to regulate occupation-specific risks related to COVID–19. Where the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are plainly permissible. We do not doubt, for example, that OSHA could regulate researchers who work with the COVID–19 virus. So too could OSHA regulate risks associated with working in particularly crowded or cramped environments. But the danger present in such workplaces differs in both degree and kind from the everyday risk of contracting COVID–19 that all face.”

In a separate opinion, the Court permitted HHS’ rule for healthcare workers to take effect. Previously this has been referred to as the CMS Vaccine Update. If you missed our previous update on the CMS Vaccination Rule, you can read about it here.

Below is the reasoning from the Supreme Court:

• “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.” (citation omitted) 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. (citation omitted) He accordingly concluded that a vaccine mandate is “necessary to promote and protect patient health and safety” in the face of the ongoing pandemic. (citation omitted) The rule thus fits neatly within the language of the statute.
• “We accordingly conclude that the Secretary did not exceed his statutory authority in requiring that, in order to remain eligible for Medicare and Medicaid dollars, the facilities covered by the interim rule must ensure that their employees be vaccinated against COVID–19.”

The HHS opinion is available here.

If you have any questions about the CMS rule (also the HHS opinion), please reach out to us.