On January 13, 2022, the U.S. Supreme Court issued an immediate stay of the Occupational Safety and Health Administration’s COVID-19 Vaccination and Testing Emergency Temporary Standard (the OSHA ETS). The Court held that it was likely that the Secretary of Labor lacked the authority to impose the mandate. This decision means that private employers subject to the OSHA ETS vaccinate-ortest and mask mandate are not currently required to comply with the ETS requirements. OSHA is currently reviewing its options on how to proceed. It is possible that it will ask the Sixth Circuit Court of Appeals to review the merits of the ETS, a decision which could again be appealed to the U.S. Supreme Court. However, this approach seems unlikely since the Supreme Court indicated it would not uphold the ETS in its current form.
Public employers in Maine are not directly subject to the OSHA ETS. However, public employers would be subject to identical requirements if the OSHA ETS was adopted by the Maine Board of Occupational Safety & Health (BOSH) pursuant to Maine’s OSHA-approved occupational safety and health program for public employers (“State Plan”). As a result of the Supreme Court's decision staying the OSHA large employer vaccination mandate, the BOSH canceled its January 18th special meeting to discuss adopting the OSHA ETS for the public sector. This indicates that the BOSH is not currently considering amending the Maine State Plan to include a vaccine-or-test mandate for large public employers in Maine.
MMA Legal Services will continue to monitor the federal and state vaccination, testing, and mask requirements and will publish updates, if relevant to municipal employers.
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