On January 13, 2022, the United States Supreme Court issued its highly anticipated decision blocking the Biden administration from enforcing an Occupational Safety and Health Administration (“OSHA”) rule mandating vaccine-or-testing for large businesses.

The OSHA rule, which was issued as an emergency temporary standard (“ETS”) back in November 2021 and was expected to cover more than 80 million private-sector workers, required employers with 100 or more workers to ensure that their employees are either fully vaccinated against COVID-19 or that they wear a mask and undergo regular testing, potentially at their own expense. Although the rule had partially taken effect already, OSHA had said it would not issue citations until at least February 9 to employers who were trying to comply with the testing requirements in good faith.

In an unsigned opinion by a 6-3 vote, the Court concluded that the rule exceeded the authority Congress had granted OSHA, reasoning that “[a]lthough Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly.”

At the same time, the Court upheld a separate rule with a more limited mandate requiring health care workers at facilities receiving federal money to be vaccinated, subject to medical or religious exemptions. That mandate does not include a testing alternative. In support of this particular decision, the 5-4 majority noted that “healthcare facilities that wish to participate in Medicare and Medicaid have always been obligated to satisfy a host of conditions that address the safe and effective provision of healthcare, not simply sound accounting.”

Employers should review and update their COVID-19 related policies in light of the Court’s decisions. As always, the attorneys at Murtha Cullina remain ready and able to assist with your employment needs related to COVID-19 rules and will keep you advised of future related updates.

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Photo of Emily McDonough Souza Emily McDonough Souza

Emily McDonough Souza is an Associate in the Litigation Department and the Labor and Employment Practice Group of Murtha Cullina LLP.  Her experience includes representing clients in a broad range of disputes involving insurance coverage, business torts, and contractual rights, as well as…

Emily McDonough Souza is an Associate in the Litigation Department and the Labor and Employment Practice Group of Murtha Cullina LLP.  Her experience includes representing clients in a broad range of disputes involving insurance coverage, business torts, and contractual rights, as well as representing employers in claims involving discrimination and retaliation, breach of non-compete and restrictive covenants, and wage and hour violations.  Emily has regularly appeared on behalf of clients in both state and federal court matters, including oral arguments, mediations, depositions, and pretrial conferences.

Prior to joining Murtha Cullina, Emily clerked for the Honorable Eliot D. Prescott of the Connecticut Appellate Court.  She received her J.D. magna cum laude from Quinnipiac University School of Law, where she served as the Executive Managing Editor of the Quinnipiac Law Review. Emily earned her B.S. magna cum laude from the University of Connecticut, where she was a member of the Honors Program.

Photo of Patricia E. Reilly Patricia E. Reilly

Patricia E. Reilly, Chair of the Labor and Employment Practice Group, is an experienced litigator who represents clients in a wide range of cases including, employment discrimination and related torts, non-compete and restrictive covenants, wage and hour, breach of contract, unfair trade practices…

Patricia E. Reilly, Chair of the Labor and Employment Practice Group, is an experienced litigator who represents clients in a wide range of cases including, employment discrimination and related torts, non-compete and restrictive covenants, wage and hour, breach of contract, unfair trade practices, and business disputes. In addition to maintaining a thriving litigation practice, Tricia counsels clients on a variety of employment-related issues including hiring, firing, and discipline; wage and hour; state and federal FMLA; sexual harassment investigations and prevention; Title IX; pregnancy and disability accommodation; and avoidance of employment discrimination liability.

Tricia is listed as a leading Labor and Employment Lawyer in Chambers USA.  She is listed in Best Lawyers in America®, and in 2017, Best Lawyers in America® recognized her as “Lawyer of the Year”, New Haven, Litigation – Labor and Employment. Tricia is a member of the American Bar Association, the Connecticut Bar Association and the New Haven County Bar Association.  She received her B.A. from Wesleyan University and her J.D. from University of California, Berkeley School of Law.

Photo of Salvatore G. Gangemi Salvatore G. Gangemi

Salvatore G. Gangemi is a Partner in the Litigation Department of Murtha Cullina and a member of the Labor and Employment Practice Group. He advises clients with respect to state, federal and local employment laws. In addition, he litigates matters involving misappropriation of…

Salvatore G. Gangemi is a Partner in the Litigation Department of Murtha Cullina and a member of the Labor and Employment Practice Group. He advises clients with respect to state, federal and local employment laws. In addition, he litigates matters involving misappropriation of trade secrets, restrictive covenants, breach of employment contract, fiduciary duty, and other work-related common law claims. Sal also counsels clients on day-to-day issues involving workplace management and administration, including requests for reasonable accommodation for disabilities, for family and medical leave, and wage and hour issues.  He conducts employment law training on a variety of topics, including sexual harassment prevention and wage/ hour compliance.  He also drafts employment policies and agreements, and assists clients in auditing worker classification practices and policies both in the context of the Fair Labor Standards Act and state laws governing independent contractor determinations.