Supreme Court Issues First Opinions on Federal COVID-19 Vaccination Requirements

Editor's note: On January 26, 2022, following the Supreme Court stay, OSHA withdrew the proposed Emergency Temporary Standard (ETS) for employers with 100 or more employees.

Last fall, U.S. President Joe Biden announced that companies with 100 or more employees would have to adopt policies requiring their employees to be vaccinated against COVID-19 or to require unvaccinated employees to undergo weekly testing and wear a face covering in the workplace. On November 5, 2021, the Occupation Safety and Health Administration (OSHA) published the Emergency Temporary Standard (ETS) implementing the directive.

After several rounds in the federal courts, the U.S. Supreme Court issued an opinion on January 13, 2022, temporarily stopping the implementation and enforcement of that rule.  While the majority opinion of the Supreme Court found that the challengers to the rule were “likely to prevail” on their challenge, the lawsuit continues in the Sixth Circuit Court of Appeals. That court will eventually rule on the legal question of whether the Secretary of the Department of Labor, who oversees OSHA, has the authority to enact these rules.

In a related opinion issued the same day, the U.S. Supreme court denied a request to temporarily stop enforcement of an order by the Secretary of the Department of Health and Human Services that requires facilities participating in Medicare and Medicaid funding to ensure that their staff — unless exempt for medical or religious reasons — are vaccinated against COVID–19.

What Does this Mean for Washington Local Governments?

Local governments are not required to adopt general vaccination or testing requirements based on the federal rule. Additionally, Governor Inslee has indicated that any state guidance will not be more restrictive than the federal requirements.

However, local government agencies that receive Medicare and Medicaid funding are required to ensure that their staff are vaccinated against COVID–19 (unless exempt for medical or religious reasons).

Also, the new developments in federal law do not prohibit state or local authorities from adopting their own rules under Washington law. If you do choose to adopt vaccination or testing requirements you do not have to reinvent the wheel! OSHA has provided a downloadable Mandatory Vaccination Policy Template and a Vaccination, Testing and Face Covering Policy Template. Additionally, if a local agency wants to adopt rules similar to those in the ETS, The team at Summit Law has put together an excellent guidance document.

Additional examples of local vaccination policies from Washington State can be found in the Face Masks and Vaccinations section of MRSC's COVID-19 Operations and Personnel Issues webpage.

For additional information on vaccine and face covering requirements, see the following MRSC blogs:

• COVID-19 Vaccination Requirements in the Local Government Workplace
• Vaccine Mandates: Accommodating Disability and Religious Belief Exemptions
• Face Coverings and Vaccine Requirements: Where Things Stand as of August 23, 2021
• Vaccine Incentive Policies in the Local Government Workplace