Martin P. Vigodnier, Esq.


Jaimee K. Wellerstein, Esq.

In an update to our previous reporting on the federal COVID-19 vaccine-or-test mandate (the “federal mandate”) discussed here, here, and here, earlier this month, the Supreme Court of the United States (“SCOTUS”) halted enforcement of the Occupational Safety and Health Administration’s (“OSHA”) Emergency Temporary Standards (“ETS”). The ETS, broadly speaking, mandated that employers with 100 or more employees require employees to receive the COVID-19 vaccine or, alternatively, to test on a weekly basis and wear masks at work.

In its ruling, SCOTUS did not address whether COVID-19 vaccination is effective or ineffective, but instead analyzed whether the federal mandate exceeded the power Congress gave to OSHA when OSHA enacted such a sweeping regulation. SCOTUS determined that OSHA was responsible for implementing occupational safety standards in the workplace, and not general public health orders. General public health issues are matters for local and state public health officials and legislative bodies. The Court described the ETS as a “blunt instrument” requiring most employers to require their employees to receive COVID-19 vaccinations or otherwise undergo weekly testing, but COVID-19, SCOTUS explained, “is a risk that occurs in many workplaces, it is not an occupational hazard in most.” Thus, SCOTUS ultimately determined OSHA likely exceeded its statutory authority in disseminating the ETS, and remanded the case back to the U.S. Court of Appeals for the Sixth Circuit for review on the merits.

Is The Federal Vaccine-or-Test Mandate Done For?

Although SCOTUS granted applications to stay the federal mandate pending review of the merits by the U.S. Court of Appeals for the Sixth Circuit, OSHA then announced on January 25, 2022 that it is withdrawing the vaccination and testing ETS as an enforceable emergency temporary standard. However, it noted that OSHA is not withdrawing the ETS as a proposed rule. OSHA stated that the agency is prioritizing its resources to focus on finalizing a permanent COVID-19 Healthcare Standard. In other words, as far as the federal vaccine mandate goes, stay tuned.

Can Employers Still Implement A Mandatory Vaccination Policy?

If you are a California employer, you may be asking yourself, “what about California requirements?” Generally speaking, employers not covered by another federal, state, or local law may choose to implement whatever policies are best-suited to the needs of their particular workplace. If you do choose to adopt a mandatory vaccination policy, then keep in mind you must also abide by relevant federal, state, and local laws. Employers are also advised to keep in mind that further change may still be coming!

If you have questions about how this case may impact your business, or any other employment-related questions, please contact the attorneys at Bradley, Gmelich & Wellerstein LLP. We’re here to help.

Martin P. Vigodnier, Esq.

Martin P. Vigodnier, Esq. is a Senior Associate in Bradley, Gmelich & Wellerstein LLP’s Employment Law Department. Martin focuses his practice on labor and employment litigation, class actions, and Private Attorney General Act (PAGA) actions, including wage and hour claims, discrimination, leaves of absence, reasonable accommodation, defamation, trade secrets, retaliation, harassment, wrongful termination, breach of contract, and fraud. Martin also drafts, in both English and Spanish, contracts, regulatory compliance materials, agreements, and policies such as anti-harassment, discrimination, and retaliation policies, OSHA safety policies, employee reimbursement policies, employee stock purchase plans, independent contractor agreements, arbitration agreements, settlement agreements, cross-purchase buy sell agreements, and employee handbooks.

Prior to joining the firm, Martin was President and Founder of his solo law practice handling various employment matters. Prior to practicing law, he was an extern for the Equal Employment Opportunity Commission (EEOC) and awarded the prestigious Peggy Browning Fellowship to work for the Federal Labor Relations Authority (FLRA), assisting the Office of General Counsel analyze unfair labor practice charges against government agencies.

Martin is a native Spanish speaker and writer, and a former amateur boxer.

Jaimee K. Wellerstein, Esq.

Jaimee K. Wellerstein, Esq. is a Partner at Bradley, Gmelich & Wellerstein LLP, and the Head of the firm’s Employment Department. Jaimee concentrates her practice in representing employers in all aspects of employment law, including defense of wage and hour class actions, PAGA claims, discrimination, retaliation, harassment, wrongful discharge, misclassification, and other employment related lawsuits. She also provides employment counseling and training in all of these areas.

Jaimee routinely represents employers in federal and state courts and in arbitration proceedings throughout the state, as well as at administrative proceedings before the Equal Employment Opportunity Commission, the California Department of Labor Standards Enforcement, the United States Department of Labor, and other federal and state agencies.

Jaimee assists as a Legal Advisor to CALSAGA, and is a member of ASIS International. She is rated AV-Preeminent by Martindale-Hubbell, the highest peer rating available.