In a 6-3 decision issued on January 13, 2022, the Supreme Court reimposed a legal stay that prevents OSHA from enforcing its vaccination Emergency Temporary Standard (ETS). And while the matter is being sent back to the 6th Circuit Court of Appeals for further review, the conclusions drawn by the Court almost certainly means the end of the ETS.
The ETS was formally published on November 5, 2021, with initial compliance dates of December 5, 2021, and January 4, 2022. Shortly thereafter, the 5th Circuit Court of Appeals issued a legal stay that put the ETS on pause and temporarily prevented OSHA from enforcing it. There were numerous legal challenges to the ETS, which were quickly consolidated and given to the 6th Circuit Court of Appeals for adjudication. The 6th Circuit lifted the legal stay and allowed OSHA to move forward with enforcement. In response, OSHA issued new compliance dates of January 10, 2022, and February 9, 2022, while the case was appealed to the Supreme Court.
The primary question before the Supreme Court was whether the scope of the vaccine ETS exceeded the statutory authority given to OSHA to issue emergency temporary standards. The Court started its analysis by acknowledging that OSHA has the power to regulate occupational risks and dangers. It then asked the question whether the ETS targeted occupational hazards, or whether it was actually regulating public health more broadly, which would exceed OSHA’s authority. While the court recognized that OSHA has the power to regulate COVID-19 risks in environments that may be uniquely susceptible to transmission (such as COVID-19 research labs, cramped workspaces, etc.), it concluded that the breadth of the ETS went beyond clearly identifiable occupational hazards, and thus was tantamount to an impermissible public health measure:
Although COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID-19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that [we] all face from crime, air pollution, or any number of communicable diseases. 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.
As a result, the Court decided that the parties opposing the ETS “are likely to succeed on the merits of their claim that [OSHA] lacked authority to impose the mandate”, so it reimposed the stay and sent the matter back down to the 6th Circuit for further review of the merits of the case. However, the Supreme Court’s reasoning and analysis all but ensures that the 6th Circuit will come to the same conclusion.
Employers will no longer have to comply with the ETS, which means that they will now have greater latitude to decide what COVID-related practices are best for their workplaces. Employers that have already started complying with the provisions of the ETS can continue to do so, if they choose, or they can discontinue some or all of the measures they’ve adopted at this point. Employers that were holding off on compliance while waiting for the Supreme Court’s decision will now have to decide whether they want to modify any of their existing safety practices. As employers make these decisions, a few things should factor into the consideration process:
Our Advisors offer in-depth analysis and are ready to help you successfully navigate employee benefits and health insurance.