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.