Ask Leslie: What Is The Status Of The OSHA Large Employer "Vaccine or Mask/Test" ETS?

By Leslie Zieren, The McCalmon Group, Inc.

The U.S. Supreme Court held oral argument on January 7, 2022, as to whether the stay of the OSHA Emergency Temporary Standard (ETS) should be re-imposed, pending litigation on the merits. The ETS applies to employers with 100 or more employees, requiring them to require vaccinations or mask/test all employees.

Previously, the U.S. Circuit Court of Appeals for the Fifth Circuit had stayed the ETS on a nationwide basis. Several court challenges to the ETS were consolidated into a single circuit under the multi-district litigation rules in the 6th Circuit. On December 17, 2021, the U.S. Circuit Court of Appeals for the Sixth Circuit lifted the stay, meaning the ETS could go into effect.  An emergency appeal to the U.S. Supreme Court was filed hours later. 

On Thursday, January 13, the U.S. Supreme Court issued its opinion (595 U.S. ____) (21A244 and 21A247), following the January 7 oral arguments, and held that stay should be enforced, pending further litigation.

So for now, compliance with the large employer ETS is not required.  

In a separate opinion, the Supreme Court upheld the vaccination mandate for healthcare workers issued by the Centers for Medicare and Medicaid Services, so those organizations do need to be in compliance.

Jack McCalmon and Leslie Zieren are attorneys with more than 50 years combined experience assisting employers in lowering their risk, including answering questions, like the one above, through the McCalmon Group's Best Practices Help Line. The Best Practice Help Line is a service of The McCalmon Group, Inc. Your organization may have access to The Best Practice Help Line or a similar service from another provider at no cost to you or at a discount. For questions about The Best Practice Help Line or what similar services are available to you via this Platform, call 888.712.7667.

If you have a question that you would like Jack McCalmon or Leslie Zieren to consider for this column, please submit it to ask@mccalmon.com. Please note that The McCalmon Group cannot guarantee that your question will be answered. Answers are based on generally accepted risk management best practices. They are not, and should not be considered, legal advice. If you need an answer immediately or desire legal advice, please call your local legal counsel.

 

 

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