In an opinion stating that they believe that opponents of the OSHA ETS on Vaccinations and Testing will be successful in their challenge to that standard, the U.S. Supreme Court today reinstated federal court stays that had been entered against enforcing that ETS. These stays, however, only apply to the portion of the ETS that applies to non-health care workers at businesses over 100 employees. (OSHA has a separate healthcare ETS and the Court issued a different decision on the CMS mandate that affects many healthcare employers)

What does this mean?  It means that non-health care employers with 100 or more workers do not have to implement a vaccination or periodic testing requirement and for now can stop worrying about OSHA enforcement of this ETS.



By now most people in the United States are aware that the Biden Administration wants everyone to get a COVID-19 vaccine and is using OSHA, CMS, and federal contracts to accomplish that goal. The OSHA path is an emergency temporary standard (ETS) requiring employers with 100 or more employees to either mandate that all employees are vaccinated or have all unvaccinated employees submit a negative COVID-19 test on a weekly basis. OSHA contends that it is well within its authority to institute this rule to respond to the ongoing pandemic. However, since the ETS’s unveiling last November, numerous states, employers, and other interested parties have challenged that authority. The flurry of litigation surrounding the ETS culminated on  January 7, when the Supreme Court heard oral argument on whether OSHA could legally enforce the ETS.

What Did the Supreme Court Do?

Nothing (at least at the time we posted this blog).

Determining which way a court may rule by listening to oral arguments is more art than science. Many listeners are probably convinced that the Court will strike down the ETS while others are sure it will be upheld. Regardless, the Court has not ruled and, despite some justices’ comments suggesting the Court might implement a stay on the ETS, that has not happened.

The expeditious pace at which the Supreme Court agreed to hear this case indicates that it appreciates the magnitude of the ETS’ impact on employers. The Court’s decision will also indirectly impact new state laws restricting an employer’s ability to implement vaccine and testing mandates. We can only hope that the Court’s decision on the legality of the ETS will come sooner rather than later and will clarify employers’ legal obligations for the remainder of the COVID-19 pandemic.

Now What?

As of January 13, 2022, on its website, OSHA indicates it will exercise enforcement discretion and will not issue citations for noncompliance with any requirements of the ETS before January 10 and not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.

The January 10 deadline has passed and the Supreme Court has not ruled. While we await the Court’s ruling, regardless of how you think the Supreme Court will or should rule, employers should have a plan in place (working with their labor and employment attorneys) to pivot if the Court upholds the ETS.

In light of the difficulty of test scheduling and concerns about costs to consumers, the Biden administration this week announced that the Department of Health and Human Services will require private health insurance and group health plans to cover the cost of over-the-counter, at-home tests purchased by individuals. That requirement will go into place on January 15, 2021.  Those companies and plans will be required to cover eight over-the-counter tests per covered individual per month. So, a family of four on the health plan could get up to 32 tests per month. Additionally, individuals will not need a healthcare provider in order to qualify for the free tests.

Many employers are requiring employees to show proof of a negative test before returning to work. While the insurance coverage cannot cure the supply chain issues that are causing problems with access to testing, we will have to see how this affects the overall strategy of battling the virus. Additionally, although the enforceability of the OSHA ETS vaccine/weekly testing mandate is still up in the air, if we end up with weekly testing this may be an answer as to who pays for that testing.