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On January 13, 2022, the Supreme Court of the United States blocked the federal government’s vaccine-or-test requirement for workplaces of 100 or more employees.

According to the majority opinion, “Although 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. Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category.”

As a result, the mandate has been “stayed,” which means it isn’t taking effect at this time for employers with 100+ employees. This decision basically reapplies the temporary injunction that previously blocked OSHA from enforcing the ETS while the parties continue to battle in the 6th Circuit Court of Appeals over whether the emergency rule is valid.

OSHA’s COVID–19 Vaccination and Testing; Emergency Temporary Standard, 86 Fed. Reg. 61402, is stayed pending disposition of the applicants’ petitions for review in the United States Court of Appeals for the Sixth Circuit and disposition of the applicants’ petitions for writs of certiorari, if such writs are timely sought. Should the petitions for writs of certiorari be denied, this order shall terminate automatically. In the event the petitions for writs of certiorari are granted, the order shall terminate upon the sending down of the judgment of this Court.

The main points of the ETS state:

  • Employers are not required to comply at this time with the ETS requirements for vaccination-or-test.
  • Employers will still need to comply with any state or local laws / mandates related to Covid-19, vaccinations, and making requirements.
  • Employers will still need to ensure the appropriate measures are being taken to protect the safety of their employees.

In a separate decision, the vaccine mandate for healthcare workers at facilities receiving federal funding was upheld.

The regulations from CMS, which is overseen by the U.S. Department of Health and Human Services, require health care workers at hospitals, nursing homes and other facilities that participate in Medicare and Medicaid to be fully vaccinated. There is no weekly testing option as there is in OSHA’s regulations.

The main points of the ETS for healthcare workers state:

  • Employers of healthcare workers receiving federal funding must require all employees are full vaccinated by 2/28/2022, no testing requirements are in place.

Resourcing Edge will continue to monitor the status of the ETS and any pending decisions from the 6th Circuit Court of Appeals and providing you with up-to-date information as soon as possible. Please reach out to your Client Account Manager with any questions you may have

Matt Kinnear

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