SCOTUS strikes down the OSHA ETS

Posted January 13, 2022

Thursday afternoon, the U.S. Supreme Court (SCOTUS) released an opinion indicating that larger employers need no longer comply with the OSHA emergency temporary standard (ETS) requiring that employees either 1) get vaccinated, or 2) mask and test weekly.

Essentially, this ruling reinstated the stay issued by the Fifth Circuit Court of Appeals several weeks ago, but that was later lifted by the Sixth Circuit Court of Appeals, when numerous challenges to the ETS were consolidated into a multi-jurisdictional lottery.

The 6th Circuit ruling was appealed to the Supreme Court, who heard arguments Jan. 7, 2022. In the meantime, the rule had temporarily gone into effect (except for testing provisions).

However, now, with the SCOTUS ruling the ETS is once again halted.

The 6-3 Supreme Court ruling indicated that the rule was no “everyday exercise of federal power,” and that the OSHA  Act did not authorize the mandate, as it was more of a public health measure; that COVID-19 is not an occupational hazard in most workplaces.

“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 wrote.

The ruling went on to say that OSHA doesn’t lack authority to regulate occupation-specific risks related to COVID–19. Where the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are plainly permissible. OSHA could, for example, regulate researchers who work with the virus, or regulate risks associated with working in particularly crowded or cramped environments.

Employers had argued that the mandate would force them to incur billions of dollars in unrecoverable compliance costs and cause hundreds of thousands of employees to leave their jobs, and OSHA argued that it would save over 6,500 lives and prevent hundreds of thousands of hospitalizations. The Supreme Court, however, said their role was not to weigh such tradeoffs.

If such a mandate were to be proposed, it would need to come from the states and Congress.

Dissenters pointed to the large number of people the virus has killed and hospitalized, making it a grave danger—one of the criteria OSHA must meet for an ETS. In workplaces, more than anywhere else, the dissenters argued, individuals have little control over the unparalleled risk.

While the ETS is currently stayed, OSHA could appeal to the 6th Circuit for a hearing on the merits. Such an appeal would need to be timely.

Employers, however, may still choose to have vaccine mandates, with consideration to employees who request medical or religious accommodations.

In related news, the injunction against the vaccine mandate for health care facilities that receive Medicare and Medicaid funding, however, was lifted. Those employers will need to comply with that mandate.

This article was written by Travis Rhoden and Darlene Clabault of J. J. Keller & Associates, Inc.