Supreme Court Rulings On OSHA Shot-or-Test Rule and CMS Vaccine Mandate
On January, 13, 2022, the U.S. Supreme Court issued rulings on the stays of both the
OSHA Shot-or-Test Rule and the Vaccine Mandate issued by the Centers for Medicare
and Medicaid Services (CMS):
- OSHA Shot-or-Test Rule: The Supreme Court reinstituted the November 6, 2021 stay of the OSHA Rule issued by the Fifth Circuit (and later lifted by the Sixth Circuit), holding that OSHA exceeded its statutory authority by issuing a general public health requirement rather than regulating a specific occupational danger. As a result, employers are no longer required to implement the Shot-or-Test requirement next month. In light of the Supreme Court ruling, it is possible that OSHA will withdraw the Shot-or-Test Rule, and restart the rule-making process to issue more focused measures targeting industries that are particularly susceptible to COVID-19. Otherwise, the Sixth Circuit will proceed with a review of the merits of the Shot-orTest Rule.
Employers should note that the stay of the Shot-or-Test Rule does not prevent OSHA from enforcing other reasonable COVID-19-related workplace safety requirements. OSHA has stated that general Covid-19 mitigation measures such as masking, social distancing, and pre-shift screening will be considered when reviewing potential violations under the Occupational Safety and Health Act’s General Duties Clause – a provision frequently included in OSHA citations that requires employers to provide a work environment “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” It is strongly advised that employers continue their current COVID-19 workplace safety strategies, and evaluate whether any additional steps may be advisable given the rapid spread of the Omicron variant.
- CMS Vaccine Mandate: The Court lifted all stays of the CMS Vaccine Mandate. This means that all covered employers will be required to move forward with the mandate, with the deadline for receiving a 1st vaccination dose or requesting an exemption on medical or religious grounds currently set for January 27, 2022. Employers who placed their vaccine mandates on hold pending the outcome of legal challenges are advised to send a communication to employees advising them of that rapidly approaching January 27th deadline.
In addition to the OSHA Shot-or-Test Rule, two other vaccine mandates applicable to
some private sector employers are still outstanding:
- Federal Contractor Vaccine Mandate: The vaccine mandate applicable to some federal contractors is currently subject to a nationwide stay that has not yet reached the Supreme Court. Although the federal government is not currently enforcing the rule, pending the outcome of legal proceedings, employers should continue planning for the vaccine mandate in case it comes into effect.
- Head Start Vaccine Mandate: A federal vaccine mandate applicable to Head Start providers is currently enjoined in 25 states, but is being implemented in states where an injunction has not been issued (including Pennsylvania). Head Start providers in Pennsylvania should move ahead with plans to implement the vaccine mandate by January 31st.
Our office will continue to monitor developments in COVID-19 mitigation closely and will
provide you with updated information and guidance as it becomes available. If you have
any questions about the contents of this Client Alert, or workplace safety issues in
general, please call our office. Thank you.
This Client Alert provides a general overview of new legal developments. It is not intended to
provide legal advice. If you have questions or would like more information about how these
developments may affect your business, please contact us at (570) 341-8800
