Photo of Thomas J. McGoey II
Listen to this post

In an opinion that employers across the country have been eagerly anticipating, the United States Supreme Court today issued a per curiam opinion blocking the Occupational Safety and Health Administration’s (“OSHA”) rule that would have required roughly 80 million workers to obtain a COVID-19 vaccination or be tested weekly and wear masks to avoid being “removed from the workplace.”  Businesses and other groups opposing the rule that OSHA had stated it would begin enforcing this week sought emergency relief from the Supreme Court, which stayed the rule upon finding that “[a]pplicants are likely to succeed on the merits of their claim that the Secretary of Labor lacked authority to impose the mandate.”

Explaining the role of OSHA and the requirement that agency standards be developed in accordance with a “rigorous process” and be “reasonably necessary or appropriate to provide safe or healthful employment,” the Court noted that the vaccine-or-test rule – which came on the heels of President Biden’s announcement of a new plan to require more Americans to be vaccinated – “operates as a blunt instrument . . . draw[ing] no distinctions based on industry or risk of exposure to COVID-19.”  The Court emphasized that the rule constitutes “a significant encroachment into the lives—and health—of a vast number of employees” and goes beyond the Secretary’s power to set workplace safety standards (as opposed to broad public health measures).  While it acknowledged that OSHA could regulate occupation-specific risks, such as for those working in “particularly crowded or cramped environments,” the Court rejected OSHA’s “indiscriminate approach” which fails to acknowledge that COVID-19 is not an occupational hazard in many workplaces.

However, the Court permitted a separate COVID-19 vaccine rule promulgated by the Secretary of Health and Human Services to take effect.  This CMS rule requires workers in nursing homes, hospitals, and other facilities  to be fully vaccinated against COVID-19 in order for these facilities to continue receiving federal Medicare and Medicaid funding.  Recognizing COVID-19’s potentially deadly impact on Medicare and Medicaid patients, the Court referenced with approval the Secretary of HHS’s conclusion that healthcare workers will be substantially less likely to contract and transmit the virus to patients if they are required to be vaccinated.  The Court held the rule falls within the Secretary’s authority conferred by Congress and “is consistent with the fundamental principle of the medical profession: first, do no harm.”

Contact our employment law team for help with state and federal law issues related to COVID-19, including vaccination and masking policies and managing exemption requests.

Disclaimer: This Blog/Web Site is made available by the law firm of Liskow & Lewis, APLC (“Liskow & Lewis”) and the individual Liskow & Lewis lawyers posting to this site for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice as to an identified problem or issue. By using this blog site you understand and acknowledge that there is no attorney client relationship formed between you and Liskow & Lewis and/or the individual Liskow & Lewis lawyers posting to this site by virtue of your using this site. The Blog/Web Site should not be used as a substitute for legal advice from a licensed professional attorney in your state regarding a particular matter.

Privacy Policy: By subscribing to Liskow & Lewis’ E-Communications, you will receive articles and blogs with insight and analysis of legal issues that may impact your industry. Communications include firm news, insights, and events. To receive information from Liskow & Lewis, your information will be kept in a secured contact database. If at any time you would like to unsubscribe, please use the SafeUnsubscribe® link located at the bottom of every email that you receive.