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Split Decision: SCOTUS Stays OSHA ETS, While Upholding CMS Vaccine Mandate

On January 13, 2022, in a 6-3 per curiam opinion in NFIB v. OSHA­, the United States Supreme Court ordered the OSHA ETS be stayed pending disposition of the matter at the Sixth Circuit Court of Appeals.  

Large Employer Mandate

In its majority opinion, the Court referred to the ETS, which requires employers with 100 or more employees to require their employees be fully vaccinated or undergo weekly testing and wear a mask, as a "blunt instrument" and "a significant encroachment" into the lives and health of employees.  The Court went on to conclude that the Secretary of Labor lacked authority to issue this vaccine-or-test mandate. 

In particular, the Court noted that COVID-19 is not an "occupational hazard," but rather it is a "kind of universal risk [that] is no different from the day-to-day dangers that all face . . . ."  As it became clear during oral arguments in this case, which occurred less than a week ago on Friday, January 7, 2022, the Court took issue with OSHA's broad-strokes approach to issuing the vaccine-or-test mandate for all employers with 100 or more employees without regard to industry or a particularized risk associated with transmitting COVID-19.  

The Court went on to state that "OSHA's indiscriminate approach fails to account for this crucial distinction—between occupational risk and risk more generally—and accordingly the mandate takes on the character of a general public health measure, rather than an 'occupational safety or health standard.'"  In determining that the Applicants were likely to succeed on the merits that OSHA lacked authority to impose the ETS, the Court determined that a stay was appropriate, preventing OSHA from enforcing the ETS, at least during the pendency of the matter at the 6th Circuit.   

Healthcare Facilities

Also, on January 13, 2022, the Supreme Court issued a per curiam opinion in Biden v. Missouri, granting the applications to stay the two injunctions barring the Secretary of Health and Human Services' regulation requiring facilities that participate in Medicare and Medicaid to ensure that their covered employees are vaccinated against COVID-19. 

In other words, unlike the Biden Administration's nationwide vaccine-or-testing mandate for employers with 100 or more employees, the Supreme Court is allowing the Secretary of Health and Human Services to mandate vaccinations for covered employees of facilities that receive Medicare and Medicaid funding, at least until the U.S. Court of Appeals for the Fifth and Eighth Circuits fully hear and render decisions on this issue.

© 2023 Ward and Smith, P.A.. All Rights Reserved.National Law Review, Volume XII, Number 13

About this Author

Emily Massey attorney WardandSmith

Emily's practice focuses on a wide range of labor and employment law issues.


  • J.D., magna cum laude, Campbell Law School, 2017. Editor in Chief, Campbell Law Review. Teaching Scholar, Legal Research & Writing. Member, Campbell Law Moot
    Court Team. Quarterfinalist, 2015 Richard A. Lord Intramural Moot Court Competition. Quarterfinalist, 2015 Kilpatrick Townsend 1L Mock Trial Competition. 2017 National Association of Women Lawyers Award.
  • B.A., ...

Will leads the firm's Workplace Safety and Health practice.  His practice experience encompasses various areas of employment and workplace-related counseling and civil litigation in both the federal and state courts at the trial and appellate levels.  Will also regularly represents employers and employees before the United States Department of Labor (USDOL), the Equal Employment Opportunity Commission (EEOC), the Occupational Safety and Health Administration (OSHA), the Mine Safety and Health Administration (MSHA), the North Carolina Department of Labor (NCDOL), the North Carolina...

Devon Williams Labor and Employment Attorney
Labor and Employment Counselor and Litigator

Devon's experience focuses on a wide range of labor and employment issues, including wage and hour matters, federal contractor compliance, employment discrimination and harassment, employee discipline and termination, personnel policies, and background checks.  In matters relating to employee benefits, she concentrates on issues confronting welfare benefit plans (such as medical, dental, and other plans) and their sponsors, including the provisions and impact of the Affordable Care Act.