In a much-anticipated ruling, the U.S. Supreme Court blocked enforcement of Occupational Safety and Health’s (OSHA) vaccine-or-testing rule for private businesses with at least 100 employees. The High Court did allow a more limited vaccine mandate by the Centers for Medicare & Medicaid Services that requires health care workers at facilities receiving federal money to be vaccinated. While many employers breathed a sigh of relief, the Court’s ruling marks the end of one chapter of a dispute that is likely to continue for some time. At this time, it is wise to consider your employer vaccine policy.
How did we get here?
On September 9, 2021, the Biden administration announced “a new plan to require more Americans to be vaccinated.” To effectuate the plan the President directed the Department of Labor to issue an emergency rule requiring all private employers with at least 100 employees to either require their workers to be fully vaccinated or be subjected to weekly COVID-19 testing.
Nearly two months later, on November 5, 2021, the Secretary of Labor, acting through OSHA, enacted a Vaccination and Testing Emergency Temporary Standard (“ETS”) that applied to private employers with 100 or more employees. An estimated 84 million workers would be impacted by the ETS. As President Biden instructed, the ETS requires that covered workers receive a COVID–19 vaccine or be subjected to weekly COVID-19 testing and wear a mask in the workplace.
The ETS was quickly challenged by numerous States, businesses, trade groups, and nonprofit organizations throughout the country. The Fifth Circuit Court of Appeals initially entered a stay that blocked the mandate on the grounds that the ETS likely exceeded OSHA’s statutory authority. The cases in the various jurisdictions were then consolidated in the Sixth Circuit Court of Appeals. The Sixth Circuit held that the ETS was likely consistent with OSHA’s statutory authority and lifted the stay and allowed OSHA’s rule to take effect.
The legality of the ETS was then ripe for an emergency appeal before the U.S. Supreme Court (the “Court”). The Court heard oral arguments for several hours on January 7, 2021. On Thursday, January 13, 2022, the Court issued a Per Curium Order blocking the ETS.
The Court’s Order is temporary in nature. The case will now be sent back to the Sixth Circuit to determine whether to permanently block or uphold the ETS. Although the Court did not “kill” the ETS, the harshness of the Order indicates that it is unlikely that the ETS (in its current form) will ultimately be upheld.
Why Did the Court Block the Mandate?
Essentially, the Court held that OSHA did not have the statutory authority to require employees to get vaccinated. The Court also took notice that upholding the mandate would have grave economic consequences that potentially outweigh its benefits. Here are some key points of the Order:
- Although Congress has given OSHA the power to regulate occupational dangers, it has not given OSHA the power to regulate public health more broadly. The Court stated that requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, fell into the category of public health.
- OSHA is limited to regulating “work related dangers”. The Court held that COVID-19 is not an occupational hazard because it can and does spread everywhere that people gather. It equated COVID to a universal risk no different from day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases.
The Court wrote: “Permitting OSHA to regulate the hazards of daily life-simply because Americans have jobs and face those same risks wile on the clock – would significantly expand OSHA’s regulatory authority without clear congressional authorization.”
- The ETS was too broad in scope. The Court was troubled that the ETS was a “blunt instrument” that draws no distinctions based on industry or risk of exposure to COVID-19. As an example, the Court stated that most lifeguards and lineman face the same regulations as do medics and meatpackers.
- There was no precedent. The Court found it telling that OSHA has never before adopted a broad public health regulation of this kind.
- This is not our fight.
Employer Vaccine Policies?
Generally, employers that were not in favor of the mandate are likely to stop efforts to implement vaccination and testing policies. The vaccination and testing requirements were going to be a heavy financial and administrative burden for many employers. They now have a reprieve.
For the most part, employers who were in favor of the mandate can continue to implement vaccine policies that they believe fit their organization. Georgia employers, for example, are not subject to any state limitations on vaccination requirements. Some may choose to require vaccinations per the employer vaccination policy, while others may choose to impose a soft mandate that allows for testing in lieu of vaccinations.
However, with the blocking of a federal mandate, larger employers in other states may be subject to various state and local vaccine rules. New York City, for example, requires all on-site workers to be vaccinated, while Florida passed a law that prohibits private employers from imposing a COVID-19 vaccination mandate without providing certain individual exemptions. As a result, employers operating in different states may have to implement different rules and face additional administrative burdens.
What’s Next from OSHA?
The current mandate is likely dead. However, employers should understand that revised OSHA vaccination regulations and increased enforcement efforts are a real possibility. For example, the Court left the door open for OSHA to come back with a more tailored rule for specific workplaces where the virus creates special danger:
“We do not doubt, for example, that OSHA could regulate researchers who work with the COVID-19 virus. So too could OSHA regulate risks associated with working in particularly crowded or cramped environments.” wrote the Court.
Also, U.S. Secretary of Labor Marty Walsh issued a statement on the Supreme Court’s ruling expressing OSHA’s commitment to workplace safety and holding employers responsible:
“The commonsense standards established in the ETS remain critical, especially during the current surge, where unvaccinated people are 15-20 times more likely to die from COVID-19 than vaccinated people. OSHA will be evaluating all options to ensure workers are protected from this deadly virus.
We urge all employers to require workers to get vaccinated or tested weekly to most effectively fight this deadly virus in the workplace. Employers are responsible for the safety of their workers on the job, and OSHA has comprehensive COVID-19 guidance to help them uphold their obligation.
Regardless of the ultimate outcome of these proceedings, OSHA will do everything in its existing authority to hold businesses accountable for protecting workers, including under the Covid-19 National Emphasis Program and General Duty Clause.”
Employers should, therefore, continue to monitor what happens at the Sixth Circuit as well as OSHA developments. Most importantly, employers should continue to follow CDC guidelines and take other appropriate steps to protect workers against COVID-19. Finally, now is a good time to review employer vaccine policies.
 The ETS is often referred to as a “soft mandate”, because it allows for weekly testing in lieu of vaccination. This differs from a “hard mandate” that requires vaccination with no testing alternative.
 Pursuant to established rules , the clerk of a special judicial panel selected the Sixth Circuit randomly by a power ball drawn from a drum containing an entry for each circuit.
Kenneth Winkler, a shareholder at Berman Fink Van Horn, helps employers navigate the employment laws and regulations that govern the workplace.