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.”
However, the high court cautioned that this ruling did not limit OSHA’s authority to regulate occupation-specific risks related to COVID-19. For instance, the court signaled that OSHA had the authority to implement targeted regulations in workplaces in which the virus posed a special danger because of the particular job or workplace. The decision specified, “We do not doubt, for example, that OSHA could regulate researchers who work with the COVID-19 virus. So too could OSHA regulate risks associated with working in particularly crowded or cramped environments.”
While OSHA has not yet published a response to the Supreme Court’s decision, we remind employers that OSHA had earlier proposed to adopt the ETS as a permanent standard following the traditional notice and comment rulemaking process. OSHA extended this public comment period through January 19, 2022. We will continue to monitor the situation and provide further information should OSHA signal that it intends to move forward with formalizing the ETS as a permanent rule despite the Supreme Court’s ruling.
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