Skip to main content

Nixon Peabody LLP

  • People
  • Capabilities
  • Insights
  • About
Trending Topics
    • People
    • Capabilities
    • Insights
    • About
    • Locations
    • Events
    • Careers
    • Alumni
    Practices

    View All

    • Affordable Housing
    • Community Development Finance
    • Corporate & Finance
    • Cybersecurity & Privacy
    • Entertainment & Media
    • Environmental
    • Franchising & Distribution
    • Government Investigations & White Collar Defense
    • Healthcare
    • Intellectual Property
    • International Services
    • Labor, Employment, and Benefits
    • Litigation
    • Private Wealth & Advisory
    • Project Finance
    • Public Finance
    • Real Estate
    • Regulatory & Government Relations
    Industries

    View All

    • Aviation
    • Cannabis
    • Consumer
    • Energy
    • Financial Services
    • Healthcare
    • Higher Education
    • Infrastructure
    • Manufacturing
    • Nonprofit Organizations
    • Real Estate
    • Sports & Stadiums
    • Technology
    Value-Added Services

    View All

    • Alternative Fee Arrangements

      Developing innovative pricing structures and alternative fee agreement models that deliver additional value for our clients.

    • Continuing Education

      Advancing professional knowledge and offering credits for attorneys, staff and other professionals.

    • Crisis Advisory

      Helping clients respond correctly when a crisis occurs.

    • DEI Strategic Services

      Providing our clients with legal, strategic, and practical advice to make transformational changes in their organizations.

    • eDiscovery

      Leveraging law and technology to deliver sound solutions.

    • Environmental, Social, and Governance (ESG)

      We help clients create positive return on investments in people, products, and the planet.

    • Global Services

      Delivering seamless service through partnerships across the globe.

    • Innovation

      Leveraging leading-edge technology to guide change and create seamless, collaborative experiences for clients and attorneys.

    • IPED

      Industry-leading conferences focused on affordable housing, tax credits, and more.

    • Legal Project Management

      Providing actionable information to support strategic decision-making.

    • Legally Green

      Teaming with clients to advance sustainable projects, mitigate the effects of climate change, and protect our planet.

    • Nixon Peabody Trust Company

      Offering a range of investment management and fiduciary services.

    • NP Capital Connector

      Bringing together companies and investors for tomorrow’s new deals.

    • NP Second Opinion

      Offering fresh insights on cases that are delayed, over budget, or off-target from the desired resolution.

    • NP Trial

      Courtroom-ready lawyers who can resolve disputes early on clients’ terms or prevail at trial before a judge or jury.

    • Social Impact

      Creating positive impact in our communities through increasing equity, access, and opportunity.

    • Women in Dealmaking

      We provide strategic counsel on complex corporate transactions and unite dynamic women in the dealmaking arena.

    1. Home
    2. Insights
    3. Alerts
    4. “Test-or-vax” gets the axe

      Alerts

    Alert / OSHA

    “Test-or-vax” gets the axe

    Jan 14, 2022

    LinkedInX (Twitter)EmailCopy URL

    By Shelagh Michaud and Kimberly Harding

    The U.S. Supreme Court ruled Fed/OSHA exceeded its authority in issuing its Emergency Temporary Standard requiring employers to implement COVID-19 vaccination and/or testing policies.

    What’s the Impact?

    • Fed/OSHA is prohibited from enforcing the ETS
    • Employers remain free to implement their own COVID-19 policies, consistent with applicable state and local requirements
    • Decision does not impact existing state and local COVID-19 related mandates and guidance

    DOWNLOAD

    SCOTUS ruling on test-or-vax mandate (PDF)

    In a highly anticipated decision, a divided United States Supreme Court halted the controversial “vaccine-or-test” Emergency Temporary Standard (ETS) for employers with 100 or more employees issued last fall by the federal Occupational Safety and Health Administration (Fed/OSHA). In a per curiam opinion[1], with which Justices Gorsuch, Thomas, and Alito concurred, Chief Justice Robert and Justices Barrett and Kavanaugh held that the Occupational Safety and Health Act empowered the agency “to set workplace safety standards, not broad public health measures.”[2]  Relying on the fact that COVID-19 is a “universal risk . . . no different from day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases,” the high court determined that Fed/OSHA had exceeded its authority and granted an emergency stay. The stay will remain in effect until the United States Court of Appeals for the Sixth Circuit issues its final opinion on whether the ETS exceeded Fed/OSHA’s authority and any appeals of that decision to the United States Supreme Court are finally resolved. Justices Breyer, Sotomayor, and Kagan dissented.

    Employers with 100 or more employees who have undoubtedly been anxiously awaiting this decision can pause their efforts to comply with the ETS. However, while Fed/OSHA is prohibited from enforcing this rule, keep in mind that employers remain free to implement their own COVID-19 prevention and mitigation policies and strategies, including employee vaccination, testing, and/or face-covering requirements, to the extent consistent with applicable state or local law. Additionally, remember that the Supreme Court decision on the Fed/OSHA ETS does not impact state and local laws or ordinances that impose COVID-19 requirements on companies, such as healthcare vaccine mandates and state or local mask requirements.


    1. https://www.supremecourt.gov/opinions/21pdf/21a244_hgci.pdf.
      [Back to reference]
    2. The Supreme Court permitted the Centers for Medicare & Medical Services (CMS) vaccine mandate for the 21 categories of Medicaid and Medicare providers and suppliers to remain in effect.
      [Back to reference]

    Practices

    Labor, Employment & BenefitsOccupational Safety & Health (OSHA)Workplace Policies, Procedures & Training

    Insights And Happenings

    • Alert

      Fed/OSHA public hearing on permanent COVID-19 healthcare standard foretells potential future policy

      June 9, 2022
    • Alert

      Cal/OSHA Standards Board readopts COVID-19 ETS, extending standards through December 31

      April 26, 2022
    • Alert

      New York City issues guidance and may amend its new pay transparency law

      March 28, 2022
    The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.

    Subscribe to stay informed of the latest legal news, alerts, and business trends.Subscribe

    • People
    • Capabilities
    • Insights
    • About
    • Locations
    • Events
    • Careers
    • Alumni
    • Cookie Preferences
    • Privacy Policy
    • Terms of Use
    • Accessibility Statement
    • Statement of Client Rights
    • Purchase Order Terms & Conditions
    • Nixon Peabody International LLC
    • PAL
    © 2025 Nixon Peabody. All rights reserved