Listen to this post

The US Supreme Court just blocked the Occupational Safety and Health Administration’s COVID-19 Vaccine and Testing Emergency Temporary Standard (the OSHA ETS), reversing the 6th Circuit and granting an emergency stay of the ETS. The stay is temporary, but effectively spells the end of the ETS.

The Court’s Opinion

In its unsigned opinion issued January 13, 2022 (with Justices Breyer, Kagan and Sotomayor dissenting), the conservative majority of Supreme Court ruled that the parties challenging the ETS are likely to succeed on the merits of their claim that OSHA lacked authority to impose the ETS. The majority held that while OSHA is empowered to regulate workplace safety standards and occupational hazards, it has not been authorized to regulate “public health standards” and “the hazards of daily life” more broadly.

The Court acknowledged that the pandemic is a risk that occurs in many workplaces, but distinguished COVID-19 from the typical occupational hazard because it has spread everywhere “that people gather” and is a “kind of universal risk” that is no different from the “day-to-day dangers that all face from crime, air pollution or any number of communicable diseases.” The Court concluded that permitting OSHA to regulate the hazards of daily life simply because most Americans have jobs and face those same risks while working would significantly expand OSHA’s regulatory purview without clear congressional authorization.

The Court noted that OSHA likely has the authority to regulate occupation-specific risks of COVID-19, such as those faced by employees working in a research lab studying the virus or working in a particularly crowded or cramped environment, but noted that such authority should be exercised through “targeted regulations” instead of the “indiscriminate approach” taken by OSHA in the ETS. The Court declined to decide the equitable issues offered by both sides as justification for their positions (e.g., the costs of compliance with the ETS vs. the lives lost to disease if vaccination is not mandated), saying it was up to Congress to decide who is right on that point.

This ruling is no surprise, given the difficult day in court the ETS had during the Supreme Court’s January 7, 2022 oral argument for the ETS, when the Court’s conservative justices were vocally skeptical about the Biden Administration’s authority to require the millions of workers to get vaccinated or test weekly.

What to do?

What should employers do now?

  • Though the ETS has once again been blocked, the OSHA’s General Duty clause, Section 5(a)(1) still requires employers to provide workers with a safe and healthful workplace. Employers should ensure they are compliant with any state or local laws or guidance regarding COVID-19 protective measures that may apply to their employees or customers, clients and vendors to avoid claims that they have failed to provide a safe workplace.
  • Employers should also keep an eye out for new state and local legislation, orders or guidance in response to the Supreme Court’s halt of the OSHA ETS that may require employers to take additional protective measures.
  • Employers who have already begun to implement measures to meet the requirements of the ETS may still wish to move forward with those protective measures. While the Supreme Court’s ruling stays implementation of the ETS, it does not prevent employers from deciding to implement vaccine mandates in most jurisdictions. Employers should consult with counsel to ensure that continuing with implementation will not violate any applicable state or local laws.

Stay tuned for further developments, and contact your Baker McKenzie employment attorney for help with your employment needs.