The U.S. Supreme Court, in a 6-3 decision, has again stayed Occupational Safety and Health Administration’s (OSHA) attempt at enforcing its COVID-19 Vaccine and Testing Emergency Temporary Standard (ETS), which OSHA first published on November 5, 2021. This matter will now return to the U.S. Court of Appeals for the Sixth Circuit for further proceedings. But, for now, large employers across the nation are relieved of OSHA’s January 10 and February 9 compliance deadlines.
The high court determined that the applicants were likely to succeed on the merits of their claim that the Secretary lacked authority to impose the mandate set forth in the ETS, concluding that the Secretary’s order for 84 million Americans to either obtain a COVID-19 vaccine or undergo weekly medical testing at their own expense was no “everyday exercise of federal power,” and instead, was a “significant encroachment into the lives—and health—of a vast number of employees.”
In finding that the Occupational Safety & Health Act did not plainly authorize the ETS, the Supreme Court determined that the standards outlined in the ETS were intended to regulate a broad public health measure, exceeding the agency’s authority to regulate workplace safety standards. The majority opinion noted that while COVID-19 was certainly present in the workplace, it was not limited to simply an occupational hazard and could also be spread in homes, schools, during sporting events, and in other places where individuals gather. As stated in the decision, “Permitting OSHA to regulate the hazards of daily life – simply because most Americans have jobs and face those same risks while on the clock – would significantly expand OSHA’s regulatory authority without clear congressional authorization.”
