The U.S. Supreme Court and the ETS

HR & Safety

01.13.22 UPDATE: The U.S. Supreme Court today blocked the Biden administration’s vaccine and testing mandate for large employers, while allowing a separate vaccination mandate for employees of healthcare facilities that receive Medicare and Medicaid funding. The ruling comes three days after the mandates were scheduled to take effect.

The U.S. Supreme Court is about to decide whether the Biden administration has the authority to require, through the Occupational Safety and Health Administration, employers with 100 or more employees to mandate employees get vaccinated against COVID-19 or undergo weekly testing before coming to work. 

OSHA calls the mandate the Vaccination and Testing Emergency Temporary Standard. The ETS also includes an indoor masking requirement for unvaccinated workers.  

It is OSHA’s position that the requirements of the ETS preempts any conflicting state or local law that limits or bans an employer from requiring vaccinations, face coverings or testing.  

Further, as part of this mandate, the Center for Medicare and Medicaid Services issued an interim rule requiring all staff (not just those with direct patient-care responsibilities) of Medicare providers (e.g., all hospitals, nursing homes, skilled homencare agencies, most doctor’s offices) to be vaccinated.  

This is in addition to President Biden’s earlier executive order requiring federal contractors to be fully vaccinated.  

All three requirements allow exemptions for medical and religious reasons, but sufficient documentation is required for each employee receiving the exemption. 

General Duty Clause

Although the Supreme Court is not hearing arguments on the CMS interim rule or the federal contractors’ executive order, it is expected that the Supreme Court’s decision on OSHA’s ETS requirements will be determinative on whether this interim rule or executive order will be enforceable.

The Supreme Court is conducting this expedited review of ETS, in part, because two circuit courts, which is the highest Federal authority below the Supreme Court, have issued conflicting decisions.  

The U.S. Court of Appeals for the Fifth Circuit issued a stay on enforcement of ETS and the Sixth Circuit recently lifted it.

The ETS raises new legal questions about the authority of the president to act unilaterally in addressing a public health crisis.

Although the Supreme Court has so far upheld vaccine mandates imposed by states and local municipalities, the ETS raises new legal questions about the authority of the president to act unilaterally in addressing a public health crisis.

There is an argument that OSHA already has the authority under its “General Duty Clause,” to mandate all employers under its jurisdiction, require their employees to be vaccinated.  

Specifically, the “General Duty Clause” requires each employer to furnish employment and a workplace “which are free from recognized hazards that are causing or are likely to cause death or serious physical harm …”  

Connecticut Employers

Please note regardless of the Supreme Court’s decision on OSHA’s ETS requirements, Gov. Ned Lamont has issued executive orders requiring all employees, contractors and volunteers of long-term care facilities (e.g., nursing homes, assisted living service agencies, residential care), hospitals, child-care facilities, K-12 non-public and public schools, and certain state contractors to be vaccinated in order to be employed or perform contracted services absent an acceptable religious or medical exemption.

Even if the court invalidates the ETS, employers have the right to require employees to be vaccinated against COVID-19.

It is important to note that even if the Supreme Court invalidates the ETS, Connecticut employers have the right to require employees to be vaccinated against COVID-19 (with consideration for proper religious and medical exemptions) and require the unvaccinated to be tested regularly. 

This right may be restricted for employers that have unions or require bargaining with the union before implementing such requirements, depending on the union’s contract language.

About the author: John Letizia is the managing and founding partner of Letizia, Ambrose and Falls


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