HR Management & Compliance

Supreme Court Stays OSHA ETS Rule, Allows CMS Mandate to Move Forward

Earlier today, the U.S. Supreme Court issued its much-anticipated decisions about the COVID-19 vaccine mandates issued by the Occupational Safety and Health Administration (OSHA) for employers with at least 100 employees, and the Centers for Medicare and Medicaid Services (CMS) for healthcare workers.

Supreme Court ETS

In a 6-3 decision, the Court reimposed a “stay” (or hold) on the OSHA emergency temporary standard (ETS), preventing the agency from enforcing the rule. The majority concluded the opponents were “likely to succeed on the merits of their claim that the [OSHA] Secretary lacked authority to impose the mandate.”

According to the majority, OSHA’s ETS was “no everyday exercise of federal power. It was instead a significant encroachment into the lives—and health—of a vast number of employees.” Although the mandate was only stayed, the majority opinion is likely the “death knell” for the rule because the agency will be barred from enforcing it while the Cincinnati-based U.S. 6th Circuit Court of Appeals makes a decision on the merits.

In a 5-4 decision, the Supreme Court removed a lower court’s injunction preventing the CMS from enforcing its vaccine mandate against healthcare employers in 25 states. According to the Court’s majority, the agency has authority to issue the mandate: “We . . . conclude that the [CMS] Secretary did not exceed his statutory authority in requiring that, in order to remain eligible for Medicare and Medicaid dollars, the facilities covered by the interim rule must ensure that their employees be vaccinated against COVID–19.”

Takeaway for Employers

OSHA’s ETS is stayed and will likely be thrown out by the 6th Circuit at some point before it expires in the next six months. The CMS vaccine mandate, however, will be allowed to go into effect in all 50 states. As we digest the decisions, we’ll be back with additional guidance soon.

Grant T. Collins is an attorney with Felhaber Larson in Minneapolis. You can reach him at

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