SCOTUS Halts Vax Or Test Rule For Large Private Employers But Lets Health Care Rule Take Effect


In two opinions issued today, the U.S. Supreme Court put a hold on a federal rule requiring large employers to adopt a vaccine or test policy but allowed the Biden administration to enforce a similar rule applicable only to healthcare facilities that accept Medicaid or Medicare funding.

In a case brought by employers and 27 states, the Court entered a stay on enforcement of the Emergency Temporary Standard that was announced by the Occupational Safety and Health Administration on November 4, 2021. The ETS required that workers at businesses with 100 or more employees get vaccinated or submit a negative COVID test weekly to enter the workplace.  It also required unvaccinated workers to wear masks indoors at work. The Court reasoned that OSHA’s indiscriminate vaccine-or-test approach failed to account for the crucial distinction between occupational risk and risk more generally—and accordingly, the mandate took on the character of a general public health measure, rather than an “occupational safety or health standard.”

In a separate case that the Court heard in conjunction with the ETS challenge, the Court held that the vaccine mandate for healthcare workers was, unlike the OSHA regulation, justified by the spending clause of the U.S. Constitution, which allows the federal government to impose conditions when it provides funding for programs like Medicaid and Medicare. In addition, the Court said, the regulation served to protect patients from being exposed to greater risks when they are in a hospital or nursing home or are being cared for by other health entities.

FMG is studying the opinions and will post an entry on its blog with full commentary, analysis, and thoughts on where the cases are headed next. For further information or inquiries, please contact Zachary E. Danner at, Justin Boron at, or Bob Chadwick at