Where Do OSHA’s Vax-or-Test ETS and CMS’ Vaccination Mandate Stand Now?


As employers likely know, the Biden administration has issued a number of vaccination mandates in various forms – all of which are subject to challenge by States and other interested parties. These include: (1) the Occupational Safety and Health Administration’s Emergency Temporary Standard requiring employers with 100+ employees to require either vaccination or weekly testing (discussed in our November 4 E-lert); (2) the Executive Order requiring government contractors and subcontractors to mandate vaccination (discussed elsewhere in this E-Update); and (3) the Centers for Medicare and Medicaid Services’ Final Rule requiring certain federally-funded healthcare entities to impose a vaccination mandate (discussed in our November 8 E-lert). At this time, the OSHA ETS has been put on hold nationwide, while the CMS rule has been stayed in ten states.

OSHA Suspends Implementation and Enforcement of Vax-or-Test ETS – For Now. Following the U.S. Court of Appeals for the Fifth Circuit’s stay of the Occupational Safety and Health Administration’s Emergency Temporary Standard (ETS) requiring employers with 100+ employees to require employees to be vaccinated or undergo weekly testing, OSHA has now stated on its ETS webpage that it “has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.” While this gives some breathing room as to the initial compliance deadlines of January 4, 2022 for the testing requirement, and December 6, 2021 for everything else, employers should not be too quick to assume that the ETS will never take effect.

As we discussed in our November 13, 2021 E-lert on the Fifth Circuit’s stay, the various petitions challenging the ETS have been consolidated into a single matter that will be heard by the Sixth Circuit. On November 23, OSHA requested the Sixth Circuit to lift the Fifth Circuit’s stay. Other parties asked the Sixth Circuit to transfer the matter back to the Fifth Circuit (which is not too likely). We expect the Sixth Circuit to move expeditiously on these requests and then on the merits. And regardless of how the Sixth Circuit rules, we expect the losing side to request Supreme Court review. There is plenty of speculation on how a (conservative) Sixth Circuit and (conservative) Supreme Court will rule, but there are no guarantees. Accordingly, larger employers should continue to monitor the situation as it develops.

The CMS Rule Is Stayed in Certain States. On November 29, 2021, a federal judge in Missouri stayed the CMS Rule – but only in the following states: Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming. The judge found the rule to exceed CMS’ authority. CMS may appeal the ruling to the (conservative) Eighth Circuit. At this time, the Rule will not take effect in the listed States for now, but it is in effect everywhere else. Thus, covered healthcare employers in States other than those listed must continue to plan for compliance with the vaccination deadline of January 4, 2022.