January 13, 2022
In a 6-3 ruling, the United States Supreme Court stayed the Occupational Safety and Health Administration’s (OSHA) COVID-19 Emergency Temporary Standard (the “Mandate”).
OSHA introduced the Mandate on November 5, 2021. The Mandate applied to employers with at least 100 employees and required covered employees to receive COVID-19 vaccination. The Mandate made an exception for unvaccinated employees who opted to get tested every week, at their own time and expense, and who wore a face covering at work in lieu of vaccination. Employees who did not comply with the Mandate were to be “removed from the workplace.” It is estimated that 84 million people would have been subject to the Mandate.
In last week’s ruling, the Supreme Court stayed OSHA’s Mandate because it was an extraordinary use of federal power—power that OSHA does not have. OSHA lacks the authority to enact the mandate because, while the congressional act that created OSHA gave it the authority to set workplace safety rules, it did not authorize the agency to set broad public health measures. Thus, allowing OSHA to set such a broad vaccine mandate—i.e., a public health rule—would go beyond congressional authorization.
The Court’s decision, however, made it clear that OSHA may regulate to stop the spread of COVID-19 in the workplace, as long as its regulations are targeted to occupation-specific risks related to COVID-19. For example, the agency may regulate “researchers who work with the COVID-19 virus,” and it may also “regulate risks associated with working in particularly crowded or cramped environments.”
Procedurally, the case will now be heard by the Sixth Circuit Court of Appeals, for a hearing on the merits. The stay will be in place until the United States Supreme Court either 1) denies review, or 2) grants review and issues a judgment.
What does all of this mean for employers?
At this time, employers do not have to require that their employees be vaccinated or get tested in compliance with the mandate.
Employers should continue to implement measures to fit the unique needs of their businesses while ensuring compliance with any applicable federal, state, and local laws.