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Supreme Court Blocks OSHA Vaccine/Testing Rule but Allows Health Care Vaccine Mandate To Proceed

On January 13, 2022, the Supreme Court reinstituted a stay blocking OSHA's COVID-19 vaccination and testing emergency temporary standard (ETS), which mandated that employers with 100 or more employees require their employees to get vaccinated or undergo weekly testing for COVID-19. The stay will prevent OSHA from further implementing or enforcing the ETS, which took effect on January 10, before the resolution of numerous challenges to the rule currently pending before the U.S. Court of Appeals for the Sixth Circuit.
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The reinstituted stay can be found here.

The Supreme Court's decision was based on its determination that the challengers to the ETS were likely to prevail on their argument that the rule exceeded the scope of OSHA's authority. As the Court stated, Congress tasked OSHA "with ensuring occupational safety—that is, 'safe and healthful working conditions.'" Accordingly, OSHA is limited to regulating only "occupational hazards," meaning those work-related risks that employees are exposed to only because of some particular aspect of their job or workplace.

In contrast, OSHA may not seek to regulate "the hazards of everyday life" simply because "most Americans have jobs and face those same risks while on the clock." Because COVID-19 "can and does spread at home, in schools, during sporting events, and everywhere else that people gather," the Court found that it constitutes a universal public health risk that falls outside of OSHA's "sphere of expertise." Although the dissenting opinion argued that the ETS was akin to OSHA standards regulating fire and sanitation risks in the workplace, which are lawful exercises of authority even though those risks are also present outside of the employment context, the majority argued that the ETS was different because "a vaccination cannot be undone at the end of the workday." As such, "imposing a vaccine mandate on 84 million Americans in response to a worldwide pandemic is simply not 'part of what the agency was built for.'"

Nonetheless, the Court held that there may be some workplaces in which COVID-19 constitutes an occupational hazard that falls within the scope of OSHA's regulatory authority, such as workplaces where "the virus poses a special danger because of the particular features of an employee's job or workplace." The opinion referenced researchers who work with the COVID-19 virus or employees who work in particularly "crowded or cramped environments" as examples of the type of workplace where OSHA could regulate the hazards posed by COVID-19.

Consistent with that holding, in a simultaneously issued opinion, the Supreme Court also upheld a separate mandate issued by the Centers for Medicare and Medicaid Services that applies to health care providers that are recipients of Medicare and Medicaid funding. But because the OSHA ETS applied to all employers with 100 or more employees without regard to occupation-specific risks, the Court found that OSHA's "indiscriminate approach" was an extraordinary exercise of authority that far exceeded what it had been granted by Congress. In short, the Court found that OSHA had never before adopted a "broad public health regulation" like the ETS that is "untethered, in any causal sense, from the workplace," and that "lack of historical precedent" was a telling indication that the ETS was beyond the agency's "legitimate reach."

Takeaways

The Supreme Court's stay of the ETS is only an interim measure that prevents its enforcement pending final disposition of the challengers' petitions for review by the Sixth Circuit. However, because the Supreme Court's opinion so clearly lays out its view that the ETS is unlawful, it is expected that the lower appellate court will reach the same conclusion.

Similarly, the Supreme Court's decision will also likely preclude OSHA from moving forward with the formal rulemaking process it had initiated to convert the ETS into a permanent standard. The deadline for public comments is currently January 19. However, because the Court's Order makes clear that OSHA cannot enforce the ETS as currently drafted, it is doubtful—but still somewhat uncertain—that OSHA will continue with the rulemaking process unless and until it makes substantial modifications to the rule. Of note, OSHA has not initiated a formal rulemaking to convert the Healthcare ETS into a permanent standard since it expired in December 2021.

It is important to note that nothing in the Court's opinion prohibits employers from voluntarily adopting mandatory vaccination policies, which many employers have already implemented.

We will continue to closely monitor developments in this area.

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