U.S. Supreme Court Issues Stay on OSHA COVID-19 ETS for Large Employer

On Friday, January 7, 2022, the U.S. Supreme Court (SCOTUS) heard oral arguments on challenges to the OSHA Emergency Temporary Standard for COVID-19 for employers with more than 100 employees. The central argument by challengers is that OSHA had exceeded its constitutional authority in issuing the vaccination or test requirements, which in effect were an end-around to congressional legislation requiring vaccination by the general public. OSHA countered that congress plainly authorized OSHA to issue Emergency Temporary Standards under the OSH Act to protect workers from ‘grave dangers’ in the workplace and that COVID-19 constitutes a grave danger and therefore the agency is within its authority to regulate via an ETS. 

On January 13, 2022, SCOTUS issued a 6-3 ruling with the majority opinion agreeing that OSHA’s ETS mandating employer vaccination or testing requirements exceeded their authority by issuing a rule addressing what is a matter of public health rather than an issue specifically within the workplace. In its ruling, the court states "OSHA's indiscriminate approach fails to account for this crucial distinction—between occupational risk and risk more generally—and accordingly the mandate takes on the character of a general public health measure, rather than an 'occupational safety or health standard.'" 

In the unsigned concurring opinion, the court writes “OSHA has never before imposed such a mandate, nor has Congress. Indeed, although Congress has enacted significant legislation addressing the COVID-19 pandemic, it has declined to enact any measure similar to what OSHA has promulgated here.” 

“Although COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. 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.”

The dissenting opinion written by Justices Breyer, Sotomayor and Kagan states that the Court is ‘acting outside of its competence and without legal basis’ in blocking the mandate, arguing that OSHA rules for COVID-19 are an acceptable target for regulation similar in the way the agency regulates other threats, such as fire and floods, despite the fact that the public faces similar hazards outside the workplace.
In determining that the Applicants were likely to succeed on the merits that OSHA lacked authority to impose the ETS, the Court determined that a stay was appropriate, preventing OSHA from enforcing the ETS and remanded the case back to the U.S. 6th Circuit Court for consideration. Given the ruling by SCOTUS, the 6th Circuit Court is expected to rule against the ETS, understanding that if it reaffirms their previous decision SCOTUS is certain to overturn the ruling upon appeal. 

As a result of the ruling, employers are not required to comply with the COVID-19 Emergency Temporary Standard at this time. However, given that SCOTUS simply issued a stay, employers should continue to monitor the issue for further developments pending a decision by the 6th Circuit Court. 

In a statement issued on January 13th, Secretary of Labor Marty Walsh states: “I am disappointed in the court’s decision, which is a major setback to the health and safety of workers across the country. OSHA stands by the Vaccination and Testing Emergency Temporary Standard as the best way to protect the nation’s workforce from a deadly virus that is infecting more than 750,000 Americans each day and has taken the lives of nearly a million Americans.”  The statement continues, “We urge all employers to require workers to get vaccinated or tested weekly to most effectively fight this deadly virus in the workplace. Employers are responsible for the safety of their workers on the job, and OSHA has comprehensive COVID-19 guidance to help them uphold their obligation.”

“Regardless of the ultimate outcome of these proceedings, OSHA will do everything in its existing authority to hold businesses accountable for protecting workers, including under the COVID-19 National Emphasis Program and General Duty Clause.”

In a related ruling, on January 13th SCOTUS stayed temporary injunctions that prevented the Centers for Medicare and Medicaid Services (CMS) Interim Final Rule from being implemented. The CMS rule mandates vaccination for covered employees of facilities that receive Medicare and Medicaid funding from the Federal government. The Court’s Order means the CMS Interim Rule is now enforceable in all states pending review by the Fifth and Eighth Circuit Court of Appeals.