Supreme Court Splits Decisions on Biden Administration ETS

Nancy Grover

Sarasota, FL ( – Non-healthcare employers are breathing a sigh of relief over today’s Supreme Court decision on vaccine mandates. But many in the healthcare industry are under a different rule.

The court struck down OSHA’s Emergency Temporary Standard (ETS) that would have required companies with at least 100 employees to require their employees to be vaccinated against the coronavirus or undergo weekly testing and wear masks. The court’s conservative justices prevailed in ruling that the administration overstepped its authority by seeking to impose the ETS. At the same time, the court allowed enforcement of a vaccine requirement for most healthcare workers.

The decision drew a variety of reactions from many workers’ compensation stakeholders.

“The effect of this ruling will be that more unvaccinated employees are in the workplace, being exposed to and exposing others to Covid,” said Rich Lenkov, Capital Member of Bryce, Downey and Lenkov. “This will result in an increase in Covid workers’ compensation claims, especially in states with liberal presumptions and laws enacted in the wake of the pandemic, like California & Illinois.”

Another attorney called the court’s decision a defining moment for employers, and issued a note of caution. “Now that they are no longer obligated to take specific steps to protect, employers have the opportunity to re-assess what is best for business continuity and employee safety,” said Chuck Kable, chief Legal Officer and chief HR officer for Axiom Medical. “As I have often said, employers’ actions and inactions are being judged every day by employees. Consequences will flow from the judgment that is passed – positive or negative. As employers everywhere breath a collective sigh of relief, a word of caution – do not miss the opportunity to affirm your commitment to worker safety. What seems like a blessing could very quickly become a curse if employers are not thoughtful and intentional in the approach taken moving forward.

Other attorneys and employers expressed little surprise at the decision regarding employers. “The Supreme Court’s decision to override OSHA’s ETS was the most obvious, obvious thing ever to so many of us,” said another attorney, Albert B. Randall, Jr., Esq., president of Franklin & Prokopik, P.C. “Regardless of whether one perceives the vaccine mandate to be proper or not, the Supreme Court’s invalidation of the ETS comes as little surprise. The primary question was whether the ETS would be overridden on substantive or procedural grounds, and the Supreme Court answered that loudly by finding that OSHA overstepped its delegated authority in issuing the ETS.”

Several employers hailed the decision as it at least clarifies the issue. “I’m happy the final ruling has been made, as many employers have been in limbo waiting for this decision,” said Michael Stack, CEO pf Amaxx. “There have been many constantly changing elements during the pandemic that have made employee management difficult. This clear direction from the highest court takes one unknown off the table and allows employers to plan accordingly how to best move forward navigating these turbulent times.”

“I am pleased that the Supreme Court acted quickly to provide employers with clarity on this important issue,” said Mark Walls, VP of Client Engagement at Safety National. “Many employers have implemented vaccine mandates on their workforce, but they did this as their own choice not because of a government directive.”

“The decision is not a surprise, and for private industry already heavily burdened with regulation, it is ultimately a win,” said Robert Wilson, CEO/president of “This type of mandate from OSHA was unprecedented. Of course, for companies looking to have full compliance regarding vaccinations, this removes a vehicle from which they can hide behind. To that degree it can complicate issues for risk managers across the country.”

A couple of respondents questioned the court’s split decisions. “What’s interesting is the Court’s decisions are inconsistent,” said Joseph Paduda, Principal with Health Strategy Associates, LLC. “Either OSHA can or cannot mandate a vaccine. Allowing a mandate for ‘healthcare workers’ that work for providers receiving Federal funding but not allowing a mandate for all employers is puzzling. If the argument is based on providers’ funding sources, then the Feds could mandate vaccinations for defense contractors, police forces, colleges and universities that receive federal dollars, school systems, transportation…the list is endless. The Court’s attempt to finesse the healthcare vs. other worker issue is awkward at best.”

Attorney Randall questioned what might be next in the ongoing vaccine mandate issue. “Will we see the Biden Administration make another attempt to enforce some sort of vaccine mandate or will we see certain state-plan states try to craft their own vaccine mandate standards? While this part of the story ends here, one never knows if a sequel is looming.”