January 14, 2022

Below please find a Client Alert from Manatt regarding yesterday’s Supreme Court actions pertaining to the federal COVID-19 Vaccine Mandate and the OSHA Emergency Temporary Standard(ETS).  Note the highlighted information including the fact that the Court continued the temporary ‘stay’ on the OSHA mandate.

Also, attached for your convenience please find the guidance documents issued by OASAS and OMH in November 2021 in response to our questions regarding which (if any) OASAS and OMH Programs and Services were impacted by the Biden federal mandate.

Note that yesterday the Supreme Court extended the temporary ‘stay’ on enforcement of the OSHA mandate.  In doing so, the Court acknowledged that OSHA may have authority to regulate occupation-specific risks related to COVID-19, leaving the door open for OSHA to issue additional COVID-19-related regulations in the future.

Supreme Court Blocks Employer Vaccine-or-Test Mandate but Proceeds With Health Care Vaccine Mandate

Client Alert, Manatt

January 13, 2022

Today the Supreme Court issued a stay of OSHA’s vaccinate-or-test emergency temporary standard (ETS), blocking the ETS from taking effect. While the Court issued a stay of the ETS, it allowed the vaccine mandate for health care workers regulated by the Centers for Medicare & Medicaid Services (CMS) to take effect. The CMS vaccine policy that was issued in November 2021 requires workers in Medicare-/Medicaid-participating health care settings to receive COVID-19 vaccinations, with limited exceptions.

In granting a stay of the ETS, the Court found that those challenging the ETS are likely to succeed on the merits of their arguments—namely, that OSHA lacks authority to impose the mandate, which if upheld would have applied to more than 80 million workers across the country. The Court took particular issue with the ETS purporting to regulate what the majority views as “hazards of daily life” and “public health” issues, rather than dangers associated with the workplace.

The Court did, however, acknowledge that OSHA may have authority to regulate occupation-specific risks related to COVID-19, leaving the door open for OSHA to issue additional COVID-19-related regulations in the future.

Three justices dissented (Elena Kagan, Sonia Sotomayor and Stephen Breyer).

To be clear, the Court’s decision today is not a final ruling on the merits of the ETS. The Court granted the application to stay enforcement of the ETS pending disposition of the petitions for review in the U.S. Court of Appeals for the Sixth Circuit and any petitions for writs of certiorari. However, the issuance of a stay is a telling indicator of the Court’s likely view of the merits, and it appears unlikely that the ETS will ultimately stand.

Based on today’s ruling, large employers are currently relieved of the federal obligation to ensure that their workers are vaccinated or tested weekly before entering the workplace. Now that the ETS is off the table, state and local governments may step in with their own mandates.

Manatt is closely monitoring developments related to COVID-19 vaccination, testing and face-covering requirements and will continue to provide information and insights as they become available.