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SCOTUS Says Stop: Enforcement of OSHA Vaccine-or-Test Mandate for Large Employers Blocked

On January 13, the U.S. Supreme Court granted emergency relief to plaintiffs challenging OSHA’s COVID-19 Emergency Temporary Standard (ETS), and issued a stay on enforcement of the rule.

OSHA announced the ETS last November, prompting a flurry of legal challenges by a host of states and business groups in federal courts across the country. Following an unusual appeals process, the ETS went into effect January 10, requiring employers of 100 or more employees to implement a mandatory vaccination or mask-and-testing policy for employees.[1] The Court’s stay now prohibits OSHA from continuing to enforce the standard until the merits of a consolidated case currently before the Sixth Circuit have been fully adjudicated, effectively ending the emergency standard’s impact on employers.

The Court, which heard oral arguments concerning this standard and another COVID-related federal rule on Friday, issued the stay in a 6-3 decision. Chief Justice John Roberts was joined by Justices Thomas, Alito, Barrett, Gorsuch, and Kavanaugh in the majority opinion granting the stay. Justices Breyer, Kagan, and Sotomayor issued a joint dissent.

The Majority: OSHA Lacks Statutory Authority to Regulate “Public Health”

The Court majority determined the parties challenging the ETS are likely to succeed on the merits of their claims that the standard exceeds OSHA’s statutory authority. Calling the standard “a blunt instrument” with “largely illusory” exemptions, the Court observed that the ETS is expected to affect more than 80 million workers. A regulatory mandate imposing such a “significant encroachment into the lives – and health – of a vast number of employees,” the Court instructed, must be founded on explicit Congressional approval.

The Court then considered OSHA’s power under the Occupational Safety and Health Act, which is limited to setting “workplace safety standards, not broad public health measures.” And while acknowledging COVID-19 “is a risk that occurs in many workplaces,” the Court found “it is not an occupational hazard in most.” Indeed, the majority observed that COVID-19 can spread in any congregate setting, and “[t]hat 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.” Thus, “[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.”

The Court allowed that OSHA may have 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.” For example, OSHA might regulate “researchers who work with the COVID-19 virus” or those “working in particularly crowded or cramped environments.” However, the ETS takes an “indiscriminate approach,” resembling a public health measure, rather than an “occupational safety or health standard,” and as such, it exceeds OSHA’s statutory authority.

Finally, the majority considered the “equities” of granting a stay. Whereas OSHA maintained its mandate would “save over 6,500 lives and prevent hundreds of thousands of hospitalizations,” the states and employers challenging the ETS claimed it would “force them to incur billions of dollars in unrecoverable compliance costs and [] cause hundreds of thousands of employees to leave their jobs.” “It is not our role,” the Court majority held, “to weigh such tradeoffs. In our system of government, that is the responsibility of those chosen by the people through the democratic process.”

Justice Neil Gorsuch, who joined the majority, also wrote a separate concurring opinion joined by Justices Thomas and Alito, emphasizing that the power to decide public health issues “rests with the States and Congress, not OSHA.”

The Dissent: OSHA’s Standard “Perfectly” Fits its Statutory Authority

Dissenting, Justices Breyer, Sotomayor, and Kagan called the COVID-19 pandemic “a menace in work settings” firmly within “the core” of OSHA’s mission to protect employees from grave danger that comes from new hazards or exposure to harmful agents. As such, the dissent argued the vaccination mandate “perfectly” fits the statutory language directing OSHA to issue emergency temporary standards. The dissent also took umbrage with the majority’s determination that the standard exceeds OSHA’s authority, saying the OSH Act “is indifferent to whether a hazard in the workplace is also found elsewhere,” and noting that “OSHA has long regulated risks that arise both inside and outside of the workplace.” According to the dissent, the expansive scope of the standard “reflects the scope of the crisis,” which is “unprecedented in the agency’s history.”

Impact on Employers

The significance of the Court’s decision for large employers cannot be overstated. OSHA is enjoined from enforcing its ETS, meaning workplace policies put into effect to meet the agency’s January 10 and February 9 compliance deadlines are no longer required and will remain so for the foreseeable future.

The case now returns to the Sixth Circuit for further proceedings and ultimately, a decision on the merits.  However, the Court’s stay on enforcement of the ETS will remain in place even after the Sixth Circuit’s ruling on the merits (regardless of the outcome of that appellate court ruling) until such time as the Court has had the final word, either issuing its own decision on the merits, or declining to issue any further ruling.

[1] Employers were required to implement nearly all of the standard’s requirements by January 10.  However, enforcement of mandatory weekly testing for unvaccinated employees was not required until February 9, 2022

© 2023 ArentFox Schiff LLPNational Law Review, Volume XII, Number 14

About this Author

Trevor M. Jorgensen Litigation Attorney Shiff Harden Law Firm

Trevor has conducted research, performed analysis, and drafted writings for a broad range of litigation matters. He has experience crafting and filing motions and petitions; drafting memoranda on pleading standards, statutes of limitations, and damages awards; and creating affidavits and executive orders.

Trevor honed his skills as an advocate during his work with the University of Michigan’s Civil-Criminal Litigation Clinic. His ability to quickly discern important case facts, maintain a keen understanding of client goals, and effectively communicate those facts and goals has...

Derek Barella Complex Dispute Labor and Employment Attorney

Resolving complex labor and employment disputes is the foundation of Derek’s practice.

Derek counsels clients on federal and state labor and employment laws, and frequently defends claims in state and federal trial and appellate courts, as well as before arbitrators and administrative agencies such as the NLRB, EEOC, and U.S. Department of Labor.

With deep experience in traditional labor matters, Derek advises clients on collective bargaining relationships, including developing and implementing bargaining strategies,...