Final Update: January 25 – President Biden’s vaccine-or-test mandate for employees of large businesses will be withdrawn by OSHA tomorrow, January 26. “After evaluating the Court’s decision, OSHA is withdrawing the Vaccination and Testing ETS as an enforceable emergency temporary standard.”
The ETS would have required private sector US employers with 100 or more employees to either mandate COVID-19 vaccinations for their employees or require them to comply with weekly COVID-19 testing and face covering requirements.
More importantly, the Supreme Court majority, in issuing its order staying enforcement of the ETS, sent a clear signal to OSHA and the Biden Administration that it believed that OSHA may well have exceeded its authority in issuing a broad vaccination-or-testing requirement that would impact nearly 90 million US employees under the auspices of its authority to regulate workplace safety. Tacitly acknowledging that further litigation was unlikely to be successful, OSHA decided to withdraw the ETS.
For now, employers that were to be covered by the ETS no longer need to plan for the possibility of its applicability or enforcement; however, employers should continue to take appropriate, reasonable COVID-19 workplace mitigation measures consistent with the General Duty Clause in the OSH Act, which requires employers provide their employees with a working environment “free from recognized hazards that are causing or are likely to cause death or serious physical harm.”
In an opinion released this afternoon, the Supreme Court split over two of the Biden Administration’s COVID-19 mandates. By a vote of 6-3, in NFIB v. OSHA, the Court ruled against the Occupational Safety and Health Administration’s Emergency Temporary Standard vaccine-or-test rule for companies with 100 or more employees.
In a per curiam majority decision issued on January 13, 2022, the United States Supreme Court stayed the implementation of the U.S. Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS) that would have obligated employers with 100 or more U.S. employees to require proof of COVID-19 vaccination or weekly COVID-19 testing, plus imposed face covering and other mitigation strategies.
Last month, the 6th Circuit Court of Appeals lifted another federal appellate court’s earlier stay of the ETS, leaving employers hastening before the Christmas holiday to develop and disseminate policies and gather vaccination records before the effective date of the ETS (deferred until January 10, 2022). With the Supreme Court’s pronouncement, compliance efforts can effectively be placed on hold.
Key Highlights from the Supreme Court Decision
Ultimately, the Court found that OSHA’s ETS – “a blunt instrument” – was not likely to survive challenge and therefore should be stayed while the lower courts addressed the merits of the challengers’ arguments.
First, the Court found that the Secretary of Labor, Martin J. Walsh, lacked authority to impose the mandate, which the Court called “a significant encroachment into the lives – and health – of a vast number of employees.” The Court disagreed that the Act plainly authorized a broad public health measure, contrasting the proper scope of OSHA’s authority to address workplace hazards and safety standards.
Although the majority of justices acknowledged COVID-19 can be contracted in the workplace, “it is not an occupational hazard in most” and can be spread anywhere that people gather.
The Court did not go so far as to say that OSHA can never regulate COVID-19 risks, but the “indiscriminate approach” of the ETS failed to draw distinctions based on industry or risk of exposure.
The Court also refused to withhold interim relief and granted the stay over the Government’s argument that the ETS would ‘save over 6,500 worker lives and prevent over 250,000 hospitalizations’ in just six months. The parties petitioning for a stay argued the ETS would force businesses to incur billions of dollars in unrecoverable compliance costs and risk hundreds of thousands of employees resigning rather than comply.
Suggesting that it is not the Court’s “role to weigh such tradeoffs,” the Court left matters regarding sweeping public health measures to Congress, finding on the law before it that Congress had not delegated to OSHA the authority to issue such a expansive mandate.
“Congress did not place vaccines within OSHA’s purview… If Congress meant to give an agency authority to issue a general vaccine mandate, it would have enacted a law conferring and defining that authority.”The Heritage Foundation
According to The Heritage Foundation, “Congress did not place vaccines within OSHA’s purview. OSHA is establishing the vaccine mandate through an emergency temporary standard. This highly unusual process allows OSHA to bypass public notice and comment. Federal agencies, including OSHA, typically must submit major rules to public scrutiny before finalizing them.”
“If Congress meant to give an agency authority to issue a general vaccine mandate, it would have enacted a law conferring and defining that authority. The U.S. has suffered through smallpox, polio, and a raft of other diseases—including the seasonal flu—for which vaccines are available. The federal government has never imposed a general vaccine mandate. Nor has any agency claimed authority to issue such a sweeping mandate.”
That said, employers retain the right to implement mandatory vaccination, or “vax-or-test,” policies. And, as even the majority notes that it is for Congress and the States to determine appropriate measures, employers must remain vigilant with regard to federal, state, and local requirements.
The Supreme Court majority stayed the ETS – which means it is on hold – pending consideration of the merits of the legal arguments related to it.
From here, the case will return to the 6th Circuit for consideration of the merits of the parties’ arguments (the case put before the Supreme Court was to infer judgment as to whether the ETS should be stayed while the lower court considers the merits).
It also will remain stayed if the losing party requests review of the 6th Circuit court’s decision from the Supreme Court, and thereafter until either the Supreme Court declines to review the lower court’s decision or, if it accepts review, until it issues its own decision on the merits. Therefore, it is unlikely the ETS will go into effect any time in the foreseeable future.
Given OSHA’s ETS cannot go into effect until after what undoubtedly would be a many-months-long process of hearings, briefings, and further appeals, there’s a considerable amount of speculation that the Biden Administration may elect to withdraw the ETS rather than engage in protracted and likely unsuccessful further litigation.
Read the Supreme Court per curiam decision here.
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