The wait is over – The United States Supreme Court weighs in and stays the OSHA ETS but the CMS vaccine mandate will proceed

The U.S. Supreme Court has reimposed a lower court’s stay of the OSHA Emergency Temporary Standard (ETS) while challenges to the ETS play out in a federal appeals court. The Court concluded that the many states, businesses and nonprofit organizations challenging the rule in several federal courts are likely to win their challenge against the ETS.

However, the Supreme Court lifted lower court stays enjoining the vaccine mandate imposed by the Centers for Medicare and Medicaid Services (CMS mandate) on healthcare providers receiving Medicare and Medicaid dollars as challenges to that mandate work through the federal courts.

What does this mean for employers covered by these mandates?

Employers subject to the OSHA ETS and who implemented reasonable, good faith efforts to meet this week’s Jan. 10, 2022, compliance deadlines can hit the pause button once again. With the stay against the ETS now firmly in place, the legal challenges to the mandate will be heard by the federal Sixth Circuit Court of Appeals once briefing is complete. A decision from the Sixth Circuit is weeks away (if not longer). Even then, that decision is subject to challenges. But, if the Supreme Court’s opinion today is any indication of how it would later rule on an appeal from the Sixth Circuit, the scale appears to tip heavily in favor of businesses. We know that many employers who have spent the past few weeks feverishly trying to determine how to implement the weekly COVID-19 testing aspect of the OSHA ETS are breathing an even heavier sigh of relief as the Feb. 9, 2022, testing deadline is now on hold.

Regarding the CMS mandate, a pair of stays that impacted half the states is lifted and compliance is required. Covered providers need to ensure their employees are vaccinated against COVID-19, subject to exemptions for medical or religious reasons. Further information on the CMS vaccine mandate can be found here (opens a new window).

As developments occur, we will keep you updated.

Download alert (opens a new window)Not legal advice: Nothing in this alert should be construed as legal advice. Lockton may not be considered your legal counsel, and communications with Lockton's HR Compliance Consulting group are not privileged under the attorney-client privilege.

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