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Supreme Court Reissues Stay on Vax-or-Test Requirement, Mandate Remains in Place for Most Healthcare Workers

OSHA announced on January 26 that they plan to withdraw the ETS, but that the rule would still be proposed as a permanent requirement. This comes just weeks after the Supreme Court reinstituted a stay of the OSHA’s Emergency Temporary Standard (ETS) earlier this month, requiring large employers to require staff to be vaccinated or produce a weekly negative test.

In their January 13th decision, the Supreme Court maintained that while COVID-19 exists as a risk in most workplaces, they do not view it as a strictly occupational hazard. The majority opinion states that targeted regulations may be permissible – citing workplaces that are particularly crowded or cramped, or laboratories that work directly with the virus for research purposes. In a separate opinion on January 13, the high court did allow CMS (Center for Medicare & Medicaid Services) to require COVID-19 vaccinations for employees of healthcare facilities receiving federal funds from Medicare & Medicaid. 

OSHA initially published the ETS on November 5. A flurry of legal action followed from both private and public employers, and by November 12 – the 5th Circuit Court of Appeals issued a stay of the ETS (making the ETS invalid). To further complicate matters, the 6th Circuit voted 2-1 to reinstate the mandate on December 17. 

Some employers are choosing to create their own vaccine mandates, which should be handled carefully to avoid discrimination. If you have questions about implementing a vaccine policy, consult your legal counsel. 

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