January 14, 2022

In a relatively quick turnaround, the US Supreme Court issued a pair of per curiam orders on January 13, 2022, blocking the Biden Administration’s “vaccine-or-testing” rule aimed at large employers, while allowing a separate rule mandating vaccination for certain health care workers to continue—for now. 

The Court’s first order blocked the Emergency Temporary Standard issued by the Occupational Safety and Health Administration (“OSHA”). The OSHA rule required businesses that have over 100 workers to adopt either a COVID-19 vaccination mandate or have workers submit to weekly tests and wear face coverings.  The OSHA rule, published by the agency on November 5, 2021, was stayed by a number of lower courts.  The Court’s majority found that OSHA had exceeded its authority in issuing the vaccine mandate or test rule, stating, “The Act empowers [OSHA] to set workplace safety standards, not broad public health measures…no provision of the Act addresses public health more generally, which falls outside of OSHA’s sphere of expertise.” The ruling grants the stays of the OSHA rule pending further proceedings.

The second-order, issued by a vote of 5-4 of the justices, gave the federal government leave to enforce a separate workplace vaccination rule issued by the Centers for Medicare & Medicaid Services (“CMS”) while the Biden administration appeals two injunctions that blocked part of the rule.  The CMS, the majority found, acted within the authority granted to it by Congress.  “Congress has authorized the [CMS] to impose conditions on the receipt of Medicaid and Medicare funds that ‘the Secretary finds necessary in the interest of the health and safety of individuals who are furnished services.” The majority found that the rule issued by the CMS “fits neatly” within the terms of the statute.


The relevant opinions can be found here:




Ashleigh N. Johnson

Partner - St. Louis