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SCOTUS Halts the COVID-19 Vaccine-or-Test Mandate

January 21, 2022
Gabrielle Gesek
Posted in: Labor & Employment

On January 13, 2022, in a 6-3 per curiam opinion, the United States Supreme Court blocked the Biden administration from enforcing a COVID-19 vaccine mandate for businesses with over one hundred employees.  Previously, the Department of Labor’s Occupational Safety and Health Administration (“OSHA”) announced a vaccine mandate set to begin on January 10, 2022. The mandate called for large businesses to either require employees to get the COVID-19 vaccine or, alternatively, require all unvaccinated employees to wear masks and submit weekly test results.

Although the Biden administration drafted the OSHA guidelines with anticipatory challenges in mind, the mandate, unsurprisingly, received pushback from elected officials, employers, and unvaccinated employees. In November 2021, the 5th U.S. Circuit Court of Appeals temporarily suspended OSHA’s Emergency Temporary Standard (“ETS”) while it considered a challenge brought by state attorneys general and private employers that oppose the directive.  Similar challenges to the ETS were filed with other federal appeals courts, and the cases were moved to the 6th U.S. Circuit Court of Appeals in a consolidated action.

In its majority opinion, the Supreme Court referred to the OSHA ETS as a “blunt instrument” and “a significant encroachment” into the lives and health of employees. The Court ultimately concluded that the Secretary of Labor lacked the authority to issue the vaccine-or-test mandate. The case now returns to the Sixth Circuit for further proceedings and ultimately, a decision on the merits.  However, the Court’s stay on enforcement of the ETS will remain in place even after the Sixth Circuit’s ruling on the merits (regardless of the outcome of that appellate court ruling) until such time as the Court has had the final word, either issuing its own decision on the merits, or declining to issue any further ruling.

However, in a separate opinion also decided that same day, the Supreme Court issued a per curiam opinion in Biden v. Missouri, which allowed the federal Centers for Medicare & Medicaid Services (CMS) to require COVID-19 vaccination for health care workers at Medicare and Medicaid certified providers and suppliers.

What Does This Mean for My Business?

The Supreme Court’s decision to enjoin OSHA from enforcing its ETS will have significant influence over some workplaces as COVID-19 policies that were issued to meet the agency’s January 10 and February 9 compliance deadlines are no longer required.  However, for many other employers, the Court’s decision will have no effect.

The Court’s opinion was narrow in that it only decided that OSHA does not have the authority from Congress to require employer vaccine mandates. Private employers are still free to implement their own vaccine-or-test mandates as they see fit.  In fact, many private companies, like Wells Fargo with over 249,000 employees, will continue to implement their vaccine requirement which is identical to the former OSHA mandate. Furthermore, many local governments and large cities have vaccine requirements in place, which will not be affected by the Supreme Court’s opinion. Neither is the U.S. government’s mandate that federal contractors’ employees be vaccinated.

While some employers may view the ruling as a victory, for many others, they can continue to implement their own vaccine mandate policies.


[1] National Federation of Independent Businesses v. Department of Labor, Occupational Safety and Health Administration, 595 U.S. (2022) https://www.supremecourt.gov/opinions/21pdf/21a244_hgci.pdf

[1] 29 C.F.R. § 1910.501(b)(1) and (d)(1).

[1] Letter to President Biden, September 16, 2021, https://ago.wv.gov/Documents/AGs’%20letter%20to%20Pres.%20Biden%20on%20vaccine%20mandate%20(FINAL)%20(02715056xD2C78).PDF.

[1] NFIB v. DOL, OSHA, 595 U.S. (2022).

[1] Joseph R. Biden v. Missouri, et al, 595 U.S. (2022) https://www.supremecourt.gov/opinions/21pdf/21a240_d18e.pdf