Near the end of 2021, the Occupational Health and Safety Administration (OSHA) issued the Emergency Temporary Standard (the ETS), which required employers with 100 or more employees to put in place a mandatory vaccination policy or require weekly COVID-19 testing and mask wearing by unvaccinated or partially vaccinated employees. On November 5, 2021, the United States Court of Appeals for the Fifth Circuit stayed enforcement and application of the vaccine mandate; this stay was dissolved by the Sixth Circuit Court of Appeals on December 17, 2021. See the discussion of these rulings here and here. Thereafter, the United States Supreme Court agreed to review the issue.

On January 7, 2022, the Supreme Court heard oral argument regarding whether to stay the ETS. On January 13, 2022, the Supreme Court issued its ruling, reversing the Sixth Circuit and staying the ETS. A copy of the opinion is available here. By issuing the stay, the Supreme Court found that the applicants who opposed the ETS were likely to succeed on the merits of their claim that the Secretary of Labor lacked authority to impose the ETS.

The crux of the Court’s analysis centered on the fact that OSHA exceeded its authority in issuing the ETS. The Court reasoned that the Occupational Safety and Health Act “empowers the Secretary to set workplace safety standards, not broad public health measures.” The Court explained that “[a]lthough COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most.” As the opinion highlights, COVID-19 spreads at home, in schools, during sporting events, and in all other places where people gather. This “kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases.” Accordingly, the Court found that 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 Court further noted that OSHA could promulgate regulations to address risks of COVID-19 if the virus posed a special danger because of the “particular features” of the job or the workplace. For example, OSHA could issue regulations affecting researchers who work with the COVID-19 virus or individuals who work in “particularly crowded or cramped environments.”

Finally, the Court found it “telling that OSHA, in its half century of existence, has never before adopted a broad public health regulation of this kind—addressing a threat that is untethered, in any causal sense, from the workplace. This ‘lack of historical precedent,’ coupled with the breadth of authority that the Secretary now claims, is a ‘telling indication’ that the mandate extends beyond the agency’s legitimate reach.”

Justice Gorsuch filed a concurring opinion, which Justices Thomas and Alito joined. Justices Breyer, Sotomayor, and Kagan dissented.

What Happens Now?

Now that the Supreme Court has stayed the ETS, the case will return to the lower court (here, the Sixth Circuit) to review the merits and determine whether OSHA validly issued the ETS. While the case is pending in the Sixth Circuit, OSHA cannot enforce its mandate, and employers will need to wait for the Sixth Circuit to rule further.

Key Takeaways

Employers seeking to determine what steps to take in light of the Supreme Court’s decision may consider the following:

  1. Employer vaccine mandates remain viable. While the Supreme Court’s decision halts enforcement of the ETS, the Supreme Court did not preclude private employers from implementing vaccine and/or testing rules for their workforce. Accordingly, absent any contrary state or local authority, employers can, if they choose, continue to implement vaccine and/or testing policies.
  2. Internal vaccine and testing protocols may continue. Employers who altered their protocols to fall in line with the ETS should evaluate whether, from a business perspective, they wish to keep such policies in place.
  3. Deliberate before drastic changes. Given the uncertainty regarding the ETS, employers may wish to refrain from taking further compliance steps that were driven by the mandate while the Sixth Circuit is considering the case.
  4. Other government entities may seek their own mandates. The Supreme Court’s decision addresses the ETS on a nationwide level. States and local governments, health authorities, agencies, and/or municipalities may impose their own requirements regarding vaccination and testing. Employers should continue monitoring state and local guidance to ensure compliance.

The COVID-19 landscape remains a complicated web of intertwining rules, regulations, and guidelines. Employers are encouraged to speak with experienced counsel to navigate the landscape and decide what steps to take, if any, following the Supreme Court’s ruling.

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Chris Wilkinson

Chris Wilkinson maintains a broad litigation and advice practice in labor and employment, wage-and-hour, federal contractor compliance, equal pay, government relations, and administrative law. He represents multinational employers, advising and counseling on the full range of employment and compliance matters arising out of…

Chris Wilkinson maintains a broad litigation and advice practice in labor and employment, wage-and-hour, federal contractor compliance, equal pay, government relations, and administrative law. He represents multinational employers, advising and counseling on the full range of employment and compliance matters arising out of federal and state laws.

Chris’ current practice focuses on counseling employers and litigating pay equity matters arising out of federal and state claims. He helps clients navigate large-scale government investigations and litigation arising out of discrimination, retaliation, whistleblower, and other enforcement matters. He also investigates highly sensitive matters at the executive level, ensures legal compliance in diversity and inclusion efforts, and strategizes regarding labor and employment risks arising out of the COVID-19 pandemic.