On January 13, 2022, the U.S. Supreme Court granted a coalition of businesses’ and states’ request for emergency relief blocking the implementation of the Occupational Health and Safety Administration (OSHA) Emergency Temporary Standard (ETS) mandating vaccines or weekly testing for millions of employees. Prior to the stay, the ETS required employers with 100 or more employees to promulgate policies requiring employees to be fully vaccinated against COVID-19 or submit to weekly testing.
The Supreme Court’s Decision
The Supreme Court made clear in its opinion that OSHA is empowered to “set workplace safety standards, not broad public health measures.” The Court went on to explain that “[a]lthough COVID–19 is a risk that occurs in many workplaces, it is not an occupational hazard in most” and that COVID-19 spreads “at home, in schools, during sporting events, and everywhere else that people gather.” Considering the totality of the circumstance and the spread of COVID-19 in all places where people gather, the Court stayed the ETS, reasoning that allowing the ETS to continue “would significantly expand OSHA’s regulatory authority without clear congressional authorization.”
Although technically the stay is only temporary and blocks OSHA from enforcing the ETS while the parties litigate its validity in lower courts, the Supreme Court’s opinion effectively kills the ETS. In light of the Court’s decision, it is highly unlikely that the Sixth Circuit Court of Appeals (where the case is now pending) will hold that the ETS is valid and enforceable. However, even if that were to happen, the case would head right back to the Supreme Court, and, at that stage, the ETS would almost certainly be struck down in its entirety, fully and finally ending the lengthy court battle.
Practical Implications of the Supreme Court’s Decision
To be clear, employers do not currently have to comply with the ETS and are now faced with the decision of what to do next. Based on the Supreme Court’s ruling, we do not expect that employers will ever have to comply with the language of the current ETS. However, please keep in mind that employers are free to implement their own policies requiring vaccines and/or weekly testing for their workforce. If an employer does decide to implement mandatory vaccines, it should consult with employment counsel to develop clear policies for employees which include reasonable accommodations for sincerely held religious beliefs and medical issues.
Gray Reed’s Labor and Employment Department will continue to monitor developments on COVID-related laws and regulations and provide regular updates to employers.