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Supreme Court Reinstates Stay on OSHA's COVID-19 Vaccination and Testing ETS, Permits CMS' COVID-19 Health Care Vaccination Rule

January 14, 2022


On January 13, 2022, the United States Supreme Court, by 6-3 majority, reinstated the Fifth Circuit's stay of OSHA's ETS, which was previously dissolved by the Sixth Circuit.

The majority held that ETS challengers will likely succeed on the merits of their claim that OSHA lacked the authority to impose the vaccine or testing mandate. Specifically, the majority ruled:

The majority stated it is the role of the legislature, not the judiciary, to weigh the tradeoffs between the benefits and harms of the ETS.

The Supreme Court's decision does not nullify the ETS but prevents it from taking effect pending the Sixth Circuit's decision on the merits and any subsequent appeal.

On the same day, the Supreme Court, in a 5-4 decision, lifted the preliminary injunction imposed by two district courts on the Centers for Medicare & Medicaid Services's (CMS) COVID-19 health care vaccination interim rule. This rule conditions receipt of Medicare and Medicaid funding on covered staff of participating health care facilities being vaccinated against COVID-19. Unlike OSHA's ETS, a majority of the Court found that CMS has the requisite congressional authority to issue the interim rule. The majority also found that the rule is not arbitrary and capricious and the challengers' statutory objections to it are unpersuasive.

What does this mean for employers?

Miller Canfield will continue to monitor new developments concerning the ETS and CMS' interim rule. If you have any questions about these developments or how they may impact your workplace, please contact the authors of this alert or your Miller Canfield attorney.

This information is based on the facts and guidance available at the time of publication and may change as the agency receives comments and/or updates its guidance.