January 13, 2022

Implementation of OSHA Private Employer Vaccine or Test Emergency Temporary Standard Stayed by U.S. Supreme Court

The Private Employer ETS, effective January 10, 2022, would have required businesses with 100 or more employees to ensure, among other things, that all of their employees be either fully vaccinated or tested weekly for COVID-19. In its opinion staying implementation of Private Employers ETS, the Court wrote: “Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given the Agency the power to regulate public health.”

It should be noted that the Court’s opinion implements a stay of the Private Employer ETS pending a decision by the U.S. Sixth Circuit Court of Appeals and all subsequent appeals to the U.S. Supreme Court on the legality of the Private Employer ETS.

In our opinion, it is highly unlikely that all appeals can be concluded before expiration of the six (6) month Private Employer ETS and even if they could it is unlikely that subsequent appeals to the Supreme Court will result in a ruling that OSHA acted within its authority in implementing the Private Employer ETS. In short, today’s ruling likely ended the Private Employer ETS.

Employers may still choose to implement their own vaccine requirements. If you have questions regarding the Private Employer ETS, vaccine policies, compliance with CDC guidelines, or any other workplace issues, please contact a Kerr Russell Labor and Employment attorney.

About the author:

Mark C. KnothImage of Mark C. Knoth, Employment and Labor attorney of Kerr Russell chairs the firm’s Labor, Employment, Employee Benefits & ERISA Practice Group. He counsels and advises business owners, managers and human resources professionals on workplace issues. These include civil rights and anti-discrimination laws; employee discipline; wage and hour; overtime; employee leaves; reasonable accommodations; veterans issues; picketing; secondary boycotts; reductions in force; drug testing; unemployment compensation; affirmative action; and union organizing campaigns, among other matters. He additionally drafts employee policies, handbooks, contracts, and covenants not to compete, and investigates threats of violence, allegations of harassment, and other employee misconduct.

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