On January 13, 2022, The Supreme Court of the United States issued an opinion rejecting the Occupational Safety and Health Administration’s Emergency Temporary Standard (OSHA ETS) requiring all businesses with 100 or more employees to mandate a COVID-19 vaccine for all employees.
The OSHA ETS on Vaccination and Testing was published on November 5, 2021. Under the OSHA ETS, employers with 100 or more employees were required to mandate vaccination or weekly testing for all employees, regardless of industry or employee duties. In addition, employers were required to provide paid time off for receiving and recovering from vaccination and also maintain a “vaccine roster.”
The OSHA ETS was challenged in numerous courts across the country. Those who challenged the OSHA ETS, which included a coalition of business and trade associations, as well as a coalition of states, sought to have enforcement paused, pending review of the case by the U.S. Court of Appeals for the Sixth Circuit. The Supreme Court’s ruling did just that.
In a 6–3 decision, the Supreme Court held that those who challenged the ETS were likely to succeed on their argument that OSHA lacked authority to issue the ETS. The Court reasoned that OSHA is empowered to set workplace safety standards, not broad public health measures. Accordingly, Chief Justice Roberts and Associate Justices Thomas, Alito, Gorsuch, Kavanaugh, and Coney Barrett found that enforcement of the ETS should be stayed pending further review in the Sixth Circuit.
Justices Breyer, Kagan, and Sotomayor dissented, finding that OSHA was within its power to issue an emergency standard to prevent workplace harm. The dissenting Justices found that COVID-19 was a grave danger in the workplace and that the OSHA ETS was necessary to address the danger.
So, what does this mean for your business?
In light of the Court’s ruling, OSHA withdrew the ETS, effective January 26, 2022. Thus, at present, businesses do not need to comply with the OSHA ETS.
OSHA noted that although it is withdrawing the ETS, it is not withdrawing the ETS as a proposed rule. Thus, it remains to be seen if OSHA will issue a narrower version of the ETS as a proposed rule.
It is important to understand that the Court’s ruling does not prevent private businesses who wish to impose a vaccination mandate from doing so. From an operations standpoint, having a significant number of employees out at the same time imposes a significant burden that a vaccination mandate may help alleviate. Further, some businesses, like Starbucks, are seeing public backlash for not having a mandate.
For many companies, given the nature of their business, working conditions, and clientele, a vaccination mandate makes sense. Concurrent with the OSHA ETS decisions, the Supreme Court held, in a 5–4 decision, that the Centers for Medicare and Medicaid Services (CMS) vaccination mandate fell within the authority that Congress gave to the agency to protect the health and safety of Medicare and Medicaid patients. Thus, the Court’s decisions mean that health care workers at facilities and at suppliers covered by the CMS regulation must be fully vaccinated or receive an approved medical or religious exemption by Feb. 28, 2022.
Employers should also be cognizant of vaccination and testing requirements at the state and local level, which are not impacted by the Court’s decision.
If your business needs guidance related to COVID-19 vaccination and testing, contact a knowledgeable attorney.