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U.S. Supreme Court Temporarily Halts OSHA ETS Vaccination Mandate

By Sean D.  Hurley

Update on the U.S. Supreme Court’s Ruling

Yesterday, January 13, 2022, the U.S. Supreme Court issued a nationwide stay of Occupational Safety and Health Administration’s (OSHA’s) COVID-19 Emergency Temporary Standard (“ETS”) which would have required a COVID-19 shot-or-test rule for private employers with 100 or more employees.

It is important to note that the Court’s decision is not the final word on whether OSHA’s ETS is legally dead. Instead, the Court provided the Sixth Circuit Court and other lower courts a legal lens by which they must now analyze the lawfulness of the ETS. Now, while these lower courts continue the legal debate, the Supreme Court has temporarily blocked the ETS from being enforced.

This issue of how this ruling affects employers depends on where the employer is geographically located. Individual states and local authorities may still impose COVID-19 healthcare requirements on employers operating within their jurisdictions. Moreover, insurance and healthcare coverage providers may also still require certain COVID-19-related preventive measures as a condition of coverage. In addition, OSHA, itself, may put forth a more limited rule to conform to the comments contained in the Court’s ruling, as discussed below.  Ultimately, the Sixth Circuit Court of Appeals must make a final determination on the ETS’s legality and subsequent enforcement.

Background Facts

The ETS was originally issued by OSHA on November 5, 2021. The Fifth Circuit Court of Appeals previously stayed the implementation and enforcement of the ETS. However, when the multiple cases challenging the ETS were consolidated and transferred to the Sixth Circuit, a three-judge panel of the Sixth Circuit dissolved the Fifth Circuit’s stay, finding that the issuance of the ETS was likely within OSHA’s authority. The challengers of the OSHA ETS then appealed the Sixth Circuit’s lifting of the stay to the Supreme Court, with oral argument being heard on January 7, 2022.

The Court’s Decision

In yesterday’s 6-3 decision, the Supreme Court found that the challengers of the ETS are likely to succeed on their claim that OSHA lacked authority to issue this vaccination mandate. The Court found that the Occupational Safety and Health Act does not “plainly authorize” OSHA’s mandate. The Court noted that the OSHA Act authorizes OSHA to set workplace safety standards, not broad public health measures, and that public health falls outside the scope of OSHA’s expertise. The Court disagreed with the proposition that the risk of contracting COVID-19 qualifies as a “work-related danger” that OSHA is authorized to regulate, noting that COVID-19 can and does spread anywhere where people gather, not just the workplace. The Court also noted that a vaccine mandate is “strikingly” different from the regulations OSHA has typically imposed, and that “imposing a vaccine mandate on 84 million Americans in response to a worldwide pandemic is simply not ‘part of what the agency was built for.’”

Despite these findings, the Court did note that where the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are “plainly permissible.” For example, OSHA could regulate researchers who work with the COVID–19 virus, and OSHA could regulate risks associated with working in particularly crowded or cramped environments. However, the Court concluded, the dangers present in those specific circumstances differ in both degree and kind from the everyday risk of contracting COVID–19 that all face, and “OSHA’s indiscriminate approach fails to account for this crucial distinction.” The Court also found that the lack of historical precedent for such action taken by OSHA, coupled with the broad authority OSHA is claiming in issuing its ETS, is a “telling indication” that the OSHA ETS extends beyond the agency’s reach.

In addition to finding that OSHA exceeded its statutory authority, the Court also found that the equities do not justify withholding interim relief from the ETS. Specifically, the Court noted that the states and employers challenging the ETS reported that OSHA’s mandate will force them to incur billions of dollars in unrecoverable compliance costs and will cause hundreds of thousands of employees to leave their jobs.

President Biden’s Response

In response to the Court’s ruling, President Biden said, “it is now up to States and individual employers to determine whether to make their workplaces as safe as possible for employees, and whether their businesses will be safe for consumers during this pandemic by requiring employees to take the simple and effective step of getting vaccinated.”

Meanwhile, implementation and enforcement of the OSHA ETS is stayed nationwide, pending final resolution in the lower courts in conformity with the legal analysis employed by the Supreme Court.

Should you have questions concerning the Court’s ruling, or need legal help navigating these ever-changing waters, please contact Michael A. Airdo at 312-506-4480 or [email protected] or Sean D. Hurley at 312-506-4455 or [email protected].