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January 17, 2022

U.S. Supreme Court Halts OSHA Vaccine-Or-Test Mandate

While individual provinces in Canada are considering whether to impose a tax on individuals who remain unvaccinated against COVID-19, in the United States the Supreme Court issued a decision regarding the Occupational Safety and Health Administration’s (OSHA) COVID-19 Emergency Temporary Standard (ETS). If allowed to move forward, this regulation would mandate that companies with 100 or more employees require their employees to be vaccinated against COVID-19 or produce regular, weekly tests that show they are not carrying the virus.

In a 6-3 decision issued on January 13, the Court reinstated a stay that prevents OSHA from enforcing the rule. That means that, at this time, employers are not required to comply with the OSHA ETS vaccination and testing mandate. However, because the case has been sent back to the U.S. Sixth Circuit Court of Appeals, employers will need to continue to monitor legal developments. The six justices reinstated the stay because they believe:

  • OSHA exceeded its authority by regulating a hazard not specific to the workplace;
  • Allowing the ETS to remain in place would significantly expand OSHA’s authority;
  • OSHA does not have authority to regulate public health; and
  • Congress has not given OSHA authority to regulate in such a broad manner.

The case will now go back to the Sixth Circuit for further consideration. While the ETS has not yet been invalidated, the Court did provide a strong indication in its majority decision that if the Sixth Circuit upholds the ETS, the Supreme Court will overrule that decision.

The Biden administration and OSHA have not yet announced how they will proceed. It appears that they have a couple of options:

  • Allow the Sixth Circuit consider the merits of the case and then litigate any appeal at the Supreme Court;
  • Try to rewrite the ETS in a more limited fashion.

The same day that it issued its ruling on the OSHA ETS, the Supreme Court upheld a vaccine mandate for health care industry employers. That standard obviously was more limited in scope and also is tied to the fact that most health care providers receive funding from federal health programs. It could, however signal an openness among the justices to allowing more limited mandates for higher risk industries or for companies that receive federal funding or contracts. (It is worth noting that the Supreme Court has not yet heard a challenge to the federal regulation requiring that federal government contractors and subcontractors require their employees to be vaccinated. That mandate was put on hold by a federal court in Georgia while a challenge to its validity goes forward.)

Even with the Supreme Court ruling, private businesses may still impose vaccine and testing requirements on their own workforces as long as local and state law allows it. To that point: In a statement, U.S. Department of Labor Secretary Marty Walsh reminded employers that they are responsible for the safety of their workers on the job. He asked employers to review OSHA’s COVID-19 Guidance and said OSHA will do “everything within its existing authority to hold businesses accountable for protecting workers.”

OSHA is also working on a permanent rule that addresses COVID-19 and workplace safety. As noted above, the agency could eventually publish a regulation that is more limited than the ETS.

Employers also should keep in mind that state and local governments have their own vaccination and testing requirements, and these rules have not been impacted by the Supreme Court’s decision. Employers must still comply with all local and state regulations. Littler has a review of state policies here.

Read more analysis of the Supreme Court’s decision herehere, and here.

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