In a per curiam opinion, a divided United States Supreme Court stayed the Occupational Safety and Health Administration’s (“OSHA”) vaccination and testing emergency temporary standard (ETS), thereby rejecting the immediate imposition of a regulation that would have required employers with 100 or more employees to ensure that their employees were either fully vaccinated against COVID-19 or subject to weekly testing. The much-anticipated ruling comes three days after the January 10th deadline that OSHA had set for employers to comply with the vaccine mandate aspect of the ETS.
While acknowledging that “COVID-19 is a risk that occurs in many workplaces,” the Supreme Court posited that the risk of COVID-19 is not an “occupational hazard,” but instead “no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases.” As such, the Supreme Court reasoned, to permit 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.” In opposition, the dissent argued that Congress’s $100 million appropriation for OSHA (under the American Rescue Plan Act of 2021) to carry out COVID-19 related worker protection activities serves as evidence that Congress knew “that OSHA’s responsibility to mitigate the harms of COVID–19 in the typical workplace do not diminish just because the disease also endangers people in other settings.”
The Supreme Court’s ruling on the ETS is the culmination of cases filed by States, businesses, trade groups, and nonprofit organizations in federal courts throughout the United States. On November 6, 2021, one day after OSHA issued the ETS, the Fifth Circuit Court of Appeals stayed the implementation and enforcement of the ETS. The Fifth Circuit reaffirmed its stay of the ETS on November 12, 2021, at which time all of the cases challenging the ETS were consolidated in the Sixth Circuit Court of Appeals. The Sixth Circuit disagreed with the Fifth Circuit’s ruling and concluded that a stay of the ETS was not justified, resulting in the Supreme Court’s consideration of this issue on an expedited basis.
Although the Supreme Court’s stay of the ETS provides large employers with a reprieve from having to comply with OSHA’s vaccination and testing mandate, it is important to note that the Supreme Court did not rule on the legality of the ETS, but instead granted a stay pending continuing litigation in the lower federal courts on the underlying merits of the ETS challenges.