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Supreme Court Blocks OSHA Vaccinate-or-Test Rule, Allows Healthcare Worker Mandate

January 13, 2022

By Rachel D. Gebaide, Morey Raiskin & Abood Shebib

Large Employer Vaccine-or-Test Mandate

In a 6-3 decision, the United States Supreme Court today issued a temporary stay of the OSHA Emergency Temporary Standard (ETS) requiring employers with 100 or more employees to implement a policy requiring, among other things, that its employees be vaccinated against COVID-19 or test weekly and wear facemasks in the workplace.

The Supreme Court’s stay of the ETS relieves large employers from compliance with the ETS. OSHA had already begun enforcing the ETS on January 10, 2022, although it had delayed enforcement of the weekly testing requirement for unvaccinated employees until February 9, 2022.

Today’s ruling means that large employers which had already rolled out their policies and were preparing to comply with the weekly testing requirement can pause their efforts unless they choose to continue, subject to any state or local laws.

Is the OSHA ETS Dead?

No. The ETS initially was stayed by the Fifth Circuit Court of Appeals on November 6, 2021. After all of the challenges to the ETS were consolidated before the Sixth Circuit Court of Appeals, the Sixth Circuit lifted the stay and allowed the ETS to go into effect. That prompted petitions to the Supreme Court seeking emergency relief and a reinstatement of the stay, which the Court granted today.

The Supreme Court’s temporary stay means that the Court believes the parties who are contesting OSHA’s authority to issue the ETS will prevail on the merits in the lower court. The ETS is suspended from taking effect pending the Sixth Circuit’s resolution of the question as to whether OSHA has the ability to issue the ETS.

While it is possible the Sixth Circuit may ultimately find that OSHA has the authority to issue the ETS, it seems unlikely given the language in the majority opinion from the Supreme Court today. Nevertheless, while employers need not take steps to comply with the ETS now, it is possible the ETS may be resurrected. Employers should save their work, so to speak, and monitor the status of the litigation, which is back before the Sixth Circuit.

Healthcare Worker Vaccine Mandate

On the flip side, the vaccine mandate for healthcare workers issued by the Centers for Medicare and Medicaid (CMS Rule) had been stayed in 25 states, but, in a 5-4 decision today, the Supreme Court lifted the stay and allowed the CMS Rule to go into effect nationwide. The litigation over the CMS Rule will return to the Fifth and Eighth Circuit Courts of Appeal, which had each stayed the CMS Rule. As a result, healthcare workers in 25 states were not subject to the CMS Rule during the stay, while healthcare workers in the other states were subject to the CMS Rule.

Now, healthcare facilities nationwide that participate in Medicare and Medicaid must comply with the CMS Rule. Previously, CMS had set a January 27, 2022, deadline for Phase 1 implementation in states where the CMS Rule had not been stayed, followed by a February 28, 2022, deadline for Phase 2 implementation. Whether CMS will revise these deadlines given that the stay has been lifted nationwide remains to be seen.

Lowndes will continue to provide updates as legal developments occur and remains available to answer questions in the meantime. In the meantime, please contact any Lowndes Labor and Employment Law attorney to discuss and strategize about the approach that your business will follow as you navigate this federal regulatory and state statutory maze.

 


This article is informational only. You should consult an attorney before acting or failing to act. The law may change rapidly and no warranty is given. LOWNDES DISCLAIMS ALL IMPLIED WARRANTIES AND WITHOUT LIMITATION, ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. ALL ARTICLES ARE PROVIDED AS IS AND WITH ALL FAULTS. Consult a Lowndes attorney if you wish to establish an attorney/client relationship.
Rachel

Rachel D. Gebaide is a member of the firm’s Executive Committee and chair of the Labor and Employment Law Group. She is an experienced employment litigator and adviser, counseling companies in the management of their human resources issues.


Rachel regularly represents employers in federal and state courts and before administrative agencies in defending against claims involving allegations of employment discrimination and violations of the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA), the Uniformed Services Employment and Reemployment Rights Act (USERRA), and other employment laws. She also defends discrimination claims arising under the Fair Housing Act.  

In addition to her litigation practice, Rachel drafts and reviews employee handbooks, employment agreements, non-competition agreements, separation agreements, and other personnel documents. She regularly advises clients regarding workplace issues and compliance with the FMLA, FLSA, WARN Act, the Affordable Care Act, and other employment laws. Rachel also has extensive experience in conducting independent investigations. 

A frequent speaker, Rachel often writes articles on developing issues in labor and employment law for client-focused publications, legal industry news outlets, and the firm’s employment law blog

Rachel is a member of the Labor and Employment Law Sections of the American Bar Association and the Federal Bar Association. She is also a member of the Orange County Bar Association, having served as Chair of the Labor and Employment Law Committee. Rachel is active in the Litigation and Employment Law Group of Meritas, a global alliance of independent law firms. 

She also serves as Executive Vice President of Congregation Ohev Shalom and Vice President, Legal of TOP Jewish Foundation. 

Morey

A Florida Supreme Court Certified Circuit Civil Mediator, Morey Raiskin works in the firm’s Labor & Employment Group.


Over the past 38 years, Morey has represented management of both large and small employers. He has successfully litigated cases in state and federal courts and represented clients in administrative proceedings involving the EEOC, DOL and FCHR. Morey also serves as an advisor to his clients, counseling them on virtually any workplace issue they may confront.

Morey develops non-compete and employment agreements, personnel policies, employment application forms, employee handbooks, and counsels clients on wage and hour, discrimination, WARN Act planning and union avoidance strategies. He litigates these same issues in state and federal courts or in administrative proceedings before the EEOC, U.S. Department of Labor or the Florida Commission on Human Relations.

Morey began practicing law in Las Vegas, Nevada, before moving to Orlando in 1984. In 1986, he accepted an in-house opportunity with a diversified publisher, Harcourt Brace Jovanovich, eventually becoming Lead Labor and Employment Counsel and Administrative Vice President of its wholly-owned subsidiary, Sea World. In 1990, Morey returned to private practice and has served in a myriad of roles, including as a shareholder and chair of the Labor and Employment Law Group at Lowndes from 1990—2012.


Abood

Abood Shebib is an attorney in the firm’s Labor and Employment Group. He primarily focuses his practice on representing employers in complex employment litigation matters, including matters involving the Fair Labor Standards Act (FLSA); Title VII of the Civil Rights Act of 1964; the Fair Credit Reporting Act (FCRA); the Americans with Disabilities Act (ADA); the Age Discrimination in Employment Act (ADEA); and the Family Medical Leave Act (FMLA). He works with a wide range of clients, from individuals and small businesses to Fortune 100 companies.

Abood has extensive experience handling all aspects of the employment litigation process in both state and federal court. In addition to preparing dispositive motions, including motions for summary judgment and motions to dismiss, taking and defending depositions, and arguing motions in court, he regularly conducts investigations and responds to charges of discrimination before the Employment Opportunity Commission (EEOC) and the Florida Commission on Human Relations (FCHR). Abood counsels clients on litigation avoidance strategies, as well as assisting with settlements and releases and the termination and discipline of employees.

With a background in commercial litigation, Abood also has experience advising clients on matters involving business litigation, trademark litigation and contract disputes in federal and state court.

Abood earned his undergraduate degree in Biology from the University of Arkansas and his law degree cum laude from the University of Florida Levin College of Law. While in law school, he served as a judicial intern to Magistrate Judge Monte C. Richardson of the U.S. District Court for the Middle District of Florida, Jacksonville Division and as a certified legal intern in the Office of the Public Defender for the Eighth Judicial Circuit. He was also an intern in the Office of the Vice President and General Counsel for the University of Florida. Shortly after graduating from law school, Abood interned with Judge James S. Moody in the U.S. District Court for the Middle District of Florida, Tampa Division. 

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