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BREAKING NEWS: The U.S. Supreme Court Reinstitutes Stay of OSHA’s Vaccine or Testing Emergency Temporary Standard

In a decision released on January 13, 2022, the United States Supreme Court reinstated the stay of OSHA’s COVID-19 vaccinate-or-test emergency temporary standard ("ETS") for employers with 100 or more employees. The 6 – 3 vote went according to the Justices’ ideological predispositions. In sum, the majority held that COVID-19 does not present a danger unique to the workplace and that OSHA lacks the authority to regulate such generalized dangers.

The case has now been sent back to the Sixth Circuit Court of Appeals for a decision on the merits. While the Supreme Court has not officially ruled on the overall legality of the ETS, it has halted its enforcement pending the final disposition of the case.  As such, employers do not need to follow the ETS until further notice.  Thus, employers should continue to monitor the developments of the ETS to ensure full compliance with applicable law.

As was the case without the ETS or any other government mandates, employers still maintain discretion on whether to implement a vaccine mandate, or can choose other options such as OSHA's vaccine or test rule and masking rules, subject to certain exceptions to accommodate employees’ disabilities and religious practices.

Your WHP employment law team is ready and able to advise your company regarding ongoing compliance and related pandemic workplace issues.  For assistance, contact Jon Hyman (, Amy DeLuca (, or Matthew Danese (


This article provides an overview and summary of the matters described therein. It is not intended to be and should not be construed as legal advice on the particular subject.

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