February 6, 2023

Volume XIII, Number 37

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February 03, 2023

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Supreme Court Blocks OSHA Vaccine-or-Test Mandate

The Supreme Court handed down an influential opinion today on the OSHA COVID-19 Emergency Temporary Standard (ETS), blocking its enforcement nationwide.

Six Justices agreed that OSHA exceeded its statutory authority to impose the ETS with universal COVID-19 safety standards.  The Court described the ETS as a “blunt instrument,” that draws no distinctions based on industry or actual risk of exposure.  Taking its opinion a step further, the Court explained that OSHA is confined to regulating workplace hazards.  Although COVID-19 can spread at work, the Court noted that it is not uniquely an occupational hazard.

Seeming to leave little room for OSHA to impose broad-based COVID-19 related standards, the Court explained that OSHA does have authority to regulate work-specific risks from the virus.  For example, the Court said OSHA could regulate risks associated with working in particularly crowded or cramped environments.  However, without an occupational connection, the Court equates the rule to a public health regulation, over which OSHA lacks regulatory authority.

Since the federal OSHA ETS has been stayed, this likewise applies to state plan states with their own agencies covering occupational safety and health (i.e., Indiana OSHA and Michigan OSHA).  Of the 22 state plan states that cover private employers, only Minnesota OSHA had formally adopted the OSHA ETS and they announced today after the Supreme Court’s decision that they will suspend enforcement of their ETS as well.

While not an ultimate ruling on the merits, the opinion explains that the stay will remain in effect until the appellate court makes a future decision on the merits and the Supreme Court decides on a potential writ of certiorari.  In other words, the case would likely have to make its way back to the Supreme Court and receive a favorable ruling before the stay could be lifted.

Read the full Supreme Court opinion.

© 2023 BARNES & THORNBURG LLPNational Law Review, Volume XII, Number 13

About this Author

Jackie Gessner Employment lawyer Barnes Thornburg

Jackie Gessner is an associate in the Indianapolis office of Barnes & Thornburg, where she is a member of the firm's Labor and Employment Law Department.

Prior to joining Barnes & Thornburg full time, Jackie was a summer associate and a legislative intern in the firm's Indianapolis office. She also served as a pro bono legal clerk in the Criminal Appellate Division of the Office of the Indiana Attorney General.

Upon graduating from Purdue University, Jackie interned with the Indiana State Senate and worked as a campaign manager for a 2010 Indiana...

Mark Kittaka, Barnes Thornburg Law Firm, Fort Wayne and Columbus, Labor and Employment Law Attorney

Mark S. Kittaka is a partner and the administrator of the Labor and Employment Law Department of Barnes & Thornburg LLP’s Fort Wayne, Indiana office. Mr. Kittaka’s practice covers all areas of labor and employment law including federal and state litigation concerning discriminatory practices and retaliation claims, including, but not limited to: Title VII race, sex, color, and religious discrimination claims; the Americans with Disabilities Act (ADA) (disability discrimination, reasonable accommodation, interactive process); Age Discrimination in Employment Act (ADEA); the Family and...