WHAT MATTERS

After more than two months of litigation, the Supreme Court stayed OSHA’s November 5, 2021 Emergency Temporary Standard requiring COVID-19 vaccination or weekly testing for employers with more than 100 employees.

On January 13, 2022, the Supreme Court, in an unsigned 6-3 per curiam decision, stayed the Occupational Safety and Health Administration’s (“OSHA”) COVID-19 Vaccination and Testing Emergency Temporary Standard (“ETS”). The Court found those challenging the ETS were likely to succeed on the merits of their claim that OSHA lacked authority to impose the mandate because OSHA only has statutory authority to set workplace safety standards, not broad public health measures. The Court agreed that while COVID-19 is “a risk that occurs in many workplaces, it is not an occupational hazard in most,” and “[p]ermitting 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.” While noting OSHA plainly has the authority to regulate specific occupational risks related to COVID-19 where the virus poses a special danger because of an employee’s particular job or workplace, the Court held the OSHA ETS is overly broad because it “draws no distinctions based on industry or risk of exposure to COVID-19.” According to the Court, “[r]equiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees” is beyond the occupational dangers Congress gave OSHA the power to regulate.

Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan issued a dissenting opinion arguing there is nothing in the OSH Act that limits regulation of hazards to those that are only found “while on the workplace clock.” In making this argument, the dissenting Justices likened the requirements of the ETS to “rules combating risks of fire, faulty electrical installations, and inadequate emergency exits” and contended that “COVID-19 spreads more widely in workplaces than in other venues because more people spend more time together there.” The dissenting Justices maintained that COVID-19 is a “grave danger” and that a standard such as the ETS is necessary to protect employees.

The Supreme Court’s decision stays enforcement of the OSHA COVID-19 Vaccination and Testing ETS while litigation on the merits continues in the Sixth Circuit Court of Appeals. However, because the ETS can only stay in effect for six months and the Supreme Court has already determined that OSHA exceeded their statutory authority in issuing the ETS, it is effectively blocked unless OSHA decides to go through regular notice and comment rulemaking.

Burr & Forman will continue to monitor developments regarding the COVID-19 pandemic and federal, state and local rules related to COVID-19 vaccination and testing to keep our clients up to date on all of the applicable legal requirements. For more information about COVID-19 vaccination or testing mandates and how they may impact your operations, please contact Amy Jordan Wilkes at awilkes@burr.com or the Burr & Forman attorney with whom you usually work.