- The Supreme Court stayed the Biden administration’s vaccine mandate for employers with 100 or more employees and signaled that it would ultimately strike down the mandate on the merits
- A New York court struck down Governor Hochul’s state indoor mask mandate
- OSHA has not withdrawn the proposed final rule effecting the vaccine mandate, but will likely narrow it to pass muster in the courts
On November 5, 2021, the Secretary of Labor, acting through the Occupational Safety and Health Administration (“OSHA”), enacted a national vaccine mandate, a temporary emergency standard. The mandate applied to employers with 100 or more employees – approximately 84 million workers, or two-thirds of the American workforce. The mandate required covered workers to receive a COVID-19 vaccine or, in the alternative, a weekly COVID-19 test.
Several states, businesses, and nonprofit organizations challenged OSHA’s rule, filing a number of petitions in each regional Court of Appeals. The petitions were then consolidated in the United States Court of Appeals for the Sixth Circuit. The Sixth Circuit held that OSHA’s mandate was likely consistent with the agency’s statutory and constitutional authority.
A number of parties then filed applications in the United States Supreme Court requesting a stay of OSHA’s rule. Two of those applications were consolidated – one from the National Federal of Independent Business, and one from a coalition of States – and, on January 13, 2022, the Supreme Court held that “[a]pplicants are likely to succeed on the merits of their claim that the Secretary [of Labor] lacked authority to impose the mandate.” The Supreme Court noted that although COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most, and OSHA’s rule fails to draw any distinctions based on industry or risk of exposure. Accordingly, the Supreme Court granted the applications for a stay, pending disposition of the petitions for review in the United States Court of Appeals for the Sixth Circuit.1
Following the Supreme Court’s ruling, OSHA withdrew its emergency temporary standard, effective January 26, 2022. OSHA announced that “[a]lthough [it] is withdrawing the vaccination and testing ETS as an enforceable emergency temporary standard, the agency is not withdrawing the ETS as a proposed rule.” This essentially means that OSHA is likely to propose a more permanent COVID-19 rule this year, just not one as broad as the rule before the Court.
Less than two weeks after the Supreme Court ruling, a New York Supreme Court struck down Governor Hochul’s mask mandate that was issued in December through the then-acting Health Commissioner. The mask mandate required people to wear masks in schools, public transit, nursing homes, health care facilities, and other indoor public venues. The court found that despite the “well aimed” intentions of state officials, the Health Commissioner lacked the authority to make law, and that such responsibility lies with the Legislature. Although the State of New York immediately appealed the decision, Governor Hochul recently indicated that New York may consider eliminating the mask mandate altogether in the coming months.
Where do these rulings leave employers?
The Supreme Court and New York rulings have undoubtedly left employers confused about how best to handle COVID-19 challenges at the workplace. The Supreme Court’s ruling, however, has little to no impact on the scope of private employers’ ability to impose vaccine mandates if they so choose. The Supreme Court ruling concerned the scope of OSHA’s authority to impose vaccine mandates on private employers, not whether private employers are able to implement such measures in the first instance. The same is true for the New York Supreme Court ruling, which concerned the State’s authority to impose mask mandates, not whether private employers can require that employees and patrons wear masks indoors.
Private employers are still able to voluntarily adopt the OSHA framework or require masks indoors, as long as such measures comply with state and local law. Many have done so. If employers require employees to be vaccinated, employers may do so except to the extent employees are exempt due to medical reasons or a sincerely held religious belief.
It should be noted that, as of this writing, a number of states, including New York, New Jersey, and Connecticut have indicated that they will remove the mask mandate for students and others in the next month or so.
Both rulings are likely to be the subject of additional litigation. The Supreme Court’s ruling is not a final decision on the merits, but rather a temporary ruling pending disposition in the United States Court of Appeals for the Sixth Circuit. If the federal government continues to litigate, it will have to narrow the scope of the proposed mandate, as the Supreme Court signaled clearly that it would ultimately strike down the mandate as is. Depending on the disposition in the Sixth Circuit with regard to an amended mandate, there could be another appeal to the Supreme Court. If so, the Supreme Court will decide the case on its merits – that is, whether OSHA has the authority to impose a vaccine mandate, however it is recast. on two-thirds of the American workforce.
Even though OSHA has withdrawn its emergency temporary standard and a New York Supreme Court has ruled that the State does not have the authority to impose mask mandates, private employers still have flexibility in determining how best to address COVID-19 at the workplace. In determining their approach, employers should consider what policies will work best for their business and culture and keep in mind the impact that considered measures – or their absence -- will have on their workforce. Employers should also keep abreast of developments at the State and local level.
1 - In a separate decision, the Supreme Court narrowly decided that the Health and Human Services can require COVID-19 vaccinations among healthcare workers employed by healthcare facilities that receive Medicare and Medicaid funding.
Bennett Pine is a shareholder in Anderson Kill's New York and Newark offices and is chair of the firm's employment and labor law group. Mr. Pine has broad-based labor and employment law experience and regularly plays a hands-on role offering preventative maintenance advice and counseling to employers in the full range of legal issues affecting the workplace.
(212) 278-1288 (NY), (973) 642-5006 (Newark)
John P. Lacey Jr. is an attorney practicing in Anderson Kill’s New Jersey office. John focuses his practice on insurance recovery and corporate litigation.