Justices Sink Vax-or-Test Rule But Clear Health Care Mandate

Labor and employment attorney Timothy Taylor spoke with Law360 about the U.S. Supreme Court's split decisions on vaccine mandates from the Occupational Safety and Health Administration (OSHA) and Centers for Medicare & Medicaid Services (CMS). The OSHA rule required businesses with 100 or more workers to adopt a COVID-19 vaccine mandate or have employees submit to weekly testing, while the CMS rule required healthcare workers at hospitals and other facilities that participate in Medicare or Medicaid to be fully vaccinated, without any testing option. The court ruled that the OSHA mandate exceeded the agency's authority, stating that COVID-19 itself is not an "occupational hazard" that OSHA could regulate because the virus spreads in areas outside the workplace, and that the mandate amounted to a "broad public health measure" that did not fall under OSHA's bailiwick. On the other hand, the court determined that CMS did act within its authority when issuing its own mandate. Mr. Taylor commented that the court's decision means a sweeping mandate from OSHA is out of the picture, but he added the ruling does leave some room for OSHA to pursue more targeted regulations like the CMS rule.

"The OSHA vaccine mandate is dead — for most workplaces. The Supreme Court's opinion states that OSHA cannot regulate COVID-19 in the workplace just because it's a workplace. Period," he explained. "Yes, this was on a stay application, but the government doesn't really have anything left to argue on the merits at the Sixth Circuit. With that said, the court left the door open to OSHA regulating workplaces where COVID-19 is a 'special danger,' so OSHA might come back with a finalized COVID-19 rule targeting workplaces where people are packed close together, deal with COVID patients or other special dangers."

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