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January 13, 2022

Stroock Client Alert

By: Howard S. Lavin, Elizabeth E. DiMichele, Patrick J. Morley

On January 13, 2022, a divided U.S. Supreme Court blocked the implementation of the Occupational Safety and Health Administration’s (“OSHA”) recently enacted vaccinate-or-test mandate for much of the nation’s workforce but affirmed a similar mandate for health care employees who work with Medicaid and Medicare recipients.

The proposed OSHA mandate, which required enforcement by employers, applied to roughly 84 million workers, covering virtually all private employers with at least 100 employees.

In the Court’s 6-3 OSHA ruling, the majority acknowledged that while “Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly," and concluded that the vaccinate-or-test mandate “certainly falls in the latter category."  Justices Breyer, Sotomayor and Kagan dissented, explaining that the Court’s decision “stymies the federal government’s ability to counter the unparalleled threat that COVID–19 poses to our nation’s workers.” 

The Court let a separate rule promulgated by the Centers for Medicare & Medicaid Services, (“CMS”) take effect, requiring vaccines for workers in nursing homes, hospitals and other facilities that receive Medicare and Medicaid payments from the federal government. In a 5-4 decision (also on January 13), the Court held that CMS acted within its authority when it issued the rule. Justices Thomas, Alito, Gorsuch and Coney Barrett dissented.

Significantly, neither decision disturbs vaccine mandates issued by individual states.

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