Vaccine-or-Testing Mandates ETS may be out but CMA moves forward

As most of us have become accustomed to the ever-changing rules the pandemic has challenged us with, there is no surprise that the recent US Supreme Court ruling has thrown yet another curve ball for employers with 100 or more employees. As a natural bi-product of this roller coaster ride we are all on, this ruling directly impacted nearly 84 million Americans.

The Supreme Court issued two important decisions on January 13, 2022 for the vaccine mandate. One decision impacted the emergency temporary standard (ETS) issued by the federal Occupational Safety and Health Administration (OSHA), which mandated vaccine or testing for employees and applied to employers with 100 or more employees. The second decision, the Centers for Medicare & Medicaid Services Interim Final Rule (CMS Rule), impacts health care employers only.

What Employers Still Need to Consider

For the time being, it is doubtful that the stay will be lifted to allow OSHA to enforce the mandate before the ETS expires in May, making it unlikely employers will ever actually be subject to the ETS’s vaccine-or-testing mandate.

The Court did make clear, however, that states and municipalities could take matters into their own hands and take action with similar requirements to address the issues arising from the pandemic. Employers will need to be cognizant of state and local requirements regarding vaccine-or- testing mandates. It’s also important to note that even though the ETS is stayed, OSHA still has general enforcement authority over employers, specifically as it relates to ensuring workers are protected from serious harm in the workplace.

Complying with the CMS Rule

If you are an employer covered by the CMS Rule (i.e. long term care facilities, hospitals, etc.), you will need to be acutely aware of the compliance deadlines in your state. For example, in the state of California, by January 27, 2022, all covered staff must have received one of the following:

  • First dose of a two-dose Covid vaccine
  • A one-dose Covid vaccine


  • Have a pending request for (or already been granted) a qualifying exemption.

By February 28, 2022, all covered staff must have received the second dose of two-dose COVID-19 vaccine (if applicable) or have been granted a qualifying exemption.

Positioning your company strategically to be able to quickly pivot and master the bullet-train of ever-evolving rules will be critical to keep your employees safe and continue to foster a culture that values just that.

PBO Advisory Group’s HR experts can provide a level of expertise necessary to navigate these adventurous times, including compliance with these latest rules.  Contact Nicole Devine, PBO Advisory Group’s Consulting Director, HR Services for more information.

Nicole Devine
Consulting Chief People Officer
858-622-1681 Ext. 287