December 4, 2022

Volume XII, Number 338

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December 01, 2022

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U.S. Supreme Court Puts OSHA COVID-19 Vaccine-Or-Test ETS Back on Ice

In a 6-3 ruling, the U.S. Supreme Court has granted a temporary stay of the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS).

The Court described the standard as a “blunt instrument” demanding most employers to require two-thirds of the American workforce to receive COVID-19 vaccinations or otherwise undergo weekly testing. The justices tipped their hands in the January 13 decision on how they might ultimately rule on the merits, stating that petitioners challenging the standard are likely to succeed in their arguments that OSHA exceeded its authority in promulgating the standard.

Noting that the Occupational Safety and Health Act empowers the Secretary of Labor to set workplace standards, the Court distinguished the ETS as a measure that instead attempts to address a broader public health concern. “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.” Significantly, the Court observed that this ETS was the first of its kind, “a broad public health regulation … addressing a threat that is untethered, in any casual sense, from the workplace.”

The Court did not preclude all regulation to stop the spread of COVID-19 in workplaces, however. It explained that the agency could take targeted measures “[w]here the virus poses a special danger because of the particular features of an employee’s job or workplace,” such as “researchers who work with the COVID-19 virus” or “risks associated with working in particularly crowded or cramped environments.” OSHA may decide to utilize the General Duty clause to address COVID-19 hazards, especially in the types of workplaces enumerated by the Court.

The decision stays the ETS, pending review of the merits by the U.S. Court of Appeals for the Sixth Circuit. The stay will remain in place until the Supreme Court denies a request for review or, if granted, until the Court issues a judgment on the merits.

At this point, all eyes are back on the Sixth Circuit, which has yet to hear, let alone to decide, the case on the merits, including arguments over whether the ETS overrides state or local laws based on federal preemption. Meanwhile, Alabama, Arizona, Arkansas, Florida, Iowa, Kansas, Montana, North Dakota, Tennessee, Texas, Utah, and West Virginia have enacted measures that would restrict or impact vaccination requirements.

Employers not covered by another federal, state, or local mandate may choose to implement whatever policies and practices best-suited to the unique needs of their workplace, keeping in mind that in State Plan states, further change may still be on the horizon. In all cases, employers should communicate clearly with their employees about any change in their policies and practices and assure employees that they will continue to monitor all circumstances and make additional changes as necessary. Additionally, employers who choose to maintain workplace vaccination policies must still follow other applicable laws, such as Title VII and the Americans with Disabilities Act, and be cognizant of the requirements in the various states mentioned above.

Kristina Brooks also contributed to this update.

Jackson Lewis P.C. © 2022National Law Review, Volume XII, Number 13
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About this Author

Courtney Malveaux, OSHA Lawyer, Employment, Richmond, Virginia, Jackson Lewis Law Firm
Principal

Courtney Malveaux is a Principal in the Richmond, Virginia, office of Jackson Lewis P.C.

Mr. Malveaux represents employers cited by the Occupational Safety and Health Administration and other regulatory agencies. He also advises and represents employers in employment law matters, including retaliation claims, employment discrimination, unemployment benefits and wage claims. Mr. Malveaux also represents business associations in state and federal legislative and regulatory matters.

Mr. Malveaux represents industry on the Virginia Safety and...

804-212-2862
Melanie L. Paul Trial Attorney Jackson Lewis Atlanta, GA
Of Counsel

Melanie L. Paul is Of Counsel in the Atlanta, Georgia office of Jackson Lewis P.C.  Her practice focuses on occupational safety and health and wage and hour issues.  Ms. Paul’s clients benefit from her unique inside experience as a trial attorney for the U.S. Department of Labor (DOL) for more than a decade. 

During Ms. Paul’s time with the DOL, she regularly appeared at hearings and trials before federal administrative tribunals and federal district courts throughout the southeastern United States in matters of Occupational Safety and Health (OSHA) law, Mine...

404-586-1869
Patricia Anderson Pryor, Class Action, Litigator
Principal and Office Litigation Manager

Patricia Anderson Pryor is a Shareholder in the Cincinnati, Ohio office of Jackson Lewis P.C. Ms. Pryor is an experienced litigator in both state and federal courts, representing and defending employers in nearly every form of employment litigation, including class actions.

She represents and advises employers in federal and state administrative proceedings, in all forms of dispute resolution, including mediation and arbitration, and in managing all aspects of the employment relationship. She has represented...

513-322-5035
Sheri Giger, Jackson Lewis, human resource policy attorney, employment labor development lawyer,
Principal

Sheri L. Giger is a Principal in the Pittsburgh, Pennsylvania, office of Jackson Lewis P.C. Her practice focuses on preventive human resource policy development, training and counseling and advice.

Ms. Giger also works on policy/handbook development, particularly for multi-state issues and compliance. She also works with compliance issues under the American with Disabilities Act, as amended, and the Family and Medical Leave Act, as amended. Ms. Giger counsels and conducts extensive training on topics such as anti-harassment...

412-338-5146
Katharine Weber, JacksonLewis Law Firm, Labor and Employment Attorney
Principal

Ms. Weber has experience litigating wrongful discharge cases; managing discrimination cases; negotiating collective bargaining agreements; representing employers before the Equal Employment Opportunity Commission and other federal, Ohio and Kentucky agencies; advising management on employment relations; drafting employee handbooks; and negotiating severance agreements.

Ms. Weber regularly advises clients on wage and hour issues. Over the past five years she has served as lead counsel on various wage and hour class and...

513-898-0050
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