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Supreme Court Stays Enforcement of OSHA’s COVID-19 Vaccination and Testing ETS

Client Alert | 1 min read | 01.13.22

On January 13, 2022, the Supreme Court granted applicants’ emergency motion to stay enforcement of the Occupational Health and Safety Administration’s (“OSHA”) COVID-19 Vaccination and Testing Emergency Temporary Standard (“ETS”). In its decision, the Court explained that the plaintiffs were likely to succeed in showing that OSHA lacked the statutory authority to mandate “84 million Americans to either obtain a COVID-19 vaccine or undergo weekly medical testing at their own expense.” The Court reasoned that “[a]lthough COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most” and to permit “OSHA to regulate the hazards of daily life . . . would significantly expand OSHA’s regulatory authority without clear congressional authorization.” While the Court acknowledged that OSHA has authority to regulate occupational risks related to COVID-19 where the virus “poses a special danger because of the particular features of an employee’s job or workplace,” it emphasized that OSHA’s “indiscriminate approach” does not consider what is an occupational hazard versus a general risk. 

Three justices—Breyer, Sotomayor, and Kagan—issued a dissenting opinion, arguing that the mandate “falls within the core of the agency’s mission: to ‘protect employees’ from ‘grave danger’ that comes from ‘new hazards’ or exposure to harmful agents.” Moreover, the dissent opined that even if the merits were a close question, the Court should not have issued a stay here because the balance of harms and the public interest do not support such an action since “[t]he lives and health of the Nation’s workers are at stake” and outweigh any potential economic harm.

The Court also issued its decision regarding the Centers for Medicare & Medicaid Services interim final rule. Unlike with the OSHA ETS, the Court granted the Government’s request to stay two district court decisions enjoining enforcement of the rule.

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Client Alert | 3 min read | 11.21.25

A Sign of What’s to Come? Court Dismisses FCA Retaliation Complaint Based on Alleged Discriminatory Use of Federal Funding

On November 7, 2025, in Thornton v. National Academy of Sciences, No. 25-cv-2155, 2025 WL 3123732 (D.D.C. Nov. 7, 2025), the District Court for the District of Columbia dismissed a False Claims Act (FCA) retaliation complaint on the basis that the plaintiff’s allegations that he was fired after blowing the whistle on purported illegally discriminatory use of federal funding was not sufficient to support his FCA claim. This case appears to be one of the first filed, and subsequently dismissed, following Deputy Attorney General Todd Blanche’s announcement of the creation of the Civil Rights Fraud Initiative on May 19, 2025, which “strongly encourages” private individuals to file lawsuits under the FCA relating to purportedly discriminatory and illegal use of federal funding for diversity, equity, and inclusion (DEI) initiatives in violation of Executive Order 14173, Ending Illegal Discrimination and Restoring Merit-Based Opportunity (Jan. 21, 2025). In this case, the court dismissed the FCA retaliation claim and rejected the argument that an organization could violate the FCA merely by “engaging in discriminatory conduct while conducting a federally funded study.” The analysis in Thornton could be a sign of how forthcoming arguments of retaliation based on reporting allegedly fraudulent DEI activity will be analyzed in the future....