Thursday, Jan. 13, the U.S. Supreme Court in a 6-3 decision blocked enforcement of the federal COVID-19 vaccination or testing mandate for employers with 100 or more employees. In a separate ruling, the court allowed a similar nationwide mandate for Medicaid- and Medicare-certified healthcare facilities to go forward.
The nation’s highest court heard oral arguments Jan. 7 on numerous legal challenges from employer groups, trade associations and 27 states, including Alabama. Gov. Kay Ivey contends “the courts are where we will win this battle.” The Supreme Court took the case after a three-judge panel of the 6th U.S. Circuit Court of Appeals on a 2-1 vote Dec. 17 lifted the stay on the U.S. Occupational Safety and Health Administration’s “vax or test” Emergency Temporary Standard. OSHA quickly set a new compliance schedule of Jan. 10 for assessment of employees and Feb. 9 for weekly testing for its reinstated rule. That rule is suspended and cannot be enforced, under the Jan. 13 decision, sending the case back to the 6th Circuit. On Jan. 26, OSHA withdrew the “vax or test” ETS and the federal government’s lawyers asked that the legal challenge in the 6th Circuit be withdrawn. In a Jan. 25 statement, OSHA said it would work toward a permanent COVID-19 standard.
The majority of the Supreme Court said the Biden administration likely didn’t have the power to mandate that large employers ensure their workers were vaccinated or tested every week for COVID-19.
“The U.S. Supreme Court did not definitively kill the ETS, however, (it) put in place a stay based on (among other things) the petitioners’ likelihood of succeeding in having the ETS found void on review by the Sixth Circuit,” Alabama Retail’s employment law partner, Lehr Middlebrooks Vreeland & Thompson, said in a statement.
OSHA originally published its Emergency Temporary Standard on Nov. 5 to require large private employers to implement and enforce a mandatory COVID-19 vaccination policy.
A third mandate that federal contractors comply with the Safer Workplaces guidelines was blocked Dec. 7 by a U.S. district judge in Georgia. That case has not yet reached the Supreme Court.
Alabama Retail member with COVID-related employment law questions, can contact Alabama Retail’s Employment Law Hotline.
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Originally posted Nov. 8, 2021; last updated at 4:30 p.m. Jan. 25, 2022