By: Laura M. Raisty, Esq. & Michelle M. De Oliveira, Esq.

The Biden Administration’s attempt to enforce OSHA’s Emergency Temporary Standard (“ETS”) has been halted, once again. On January 13, 2022, the United States Supreme Court, in a 6-3 decision, granted a stay of the ETS, which requires private employers with 100 or more employees to implement a mandatory COVID-19 vaccination policy or require employees to undergo weekly COVID-19 testing. The Supreme Court’s decision stops enforcement and implementation of the ETS pending further review and a ruling from the United States Court of Appeals for the Sixth Circuit and, perhaps, a further appeal to the Supreme Court.

In short, the decision held that those challenging the ETS are likely to succeed on their argument that OSHA lacks authority to impose the vaccination or test mandate. Administrative agencies, such as OSHA, “are creatures of statute[,]” and “only possess the authority that Congress has provided.” Although OSHA has the authority to regulate occupational and workplace dangers, it does not “have the power to regulate health more broadly,” and “[r]equiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category.”

The decision goes on to state that vaccination is not something that can be “undone at the end of the workday,” and it highlights that:

               [a]lthough 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 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.

Once again, the future of the ETS is uncertain. Employers who were working tirelessly to meet the January 10th deadline for compliance with, among other things, implementing a written ETS workplace policy, are now given a new direction: implementation and enforcement of such policies are no longer necessary—at least for now.

The legal battle relating to whether OSHA can, or cannot, enforce the ETS is not over just yet. Litigation will continue to unfold, and employers are encouraged to continue preparing and planning for the ETS’s implementation in the event that the Sixth Circuit Court of Appeals disagrees with the Supreme Court and reinstates the ETS. Regardless of how the Sixth Circuit rules, however, it is certainly feasible that its decision will be appealed, and the Supreme Court will have a second opportunity to rule on the ETS’ validity and lawfulness.

Putting aside the rollercoaster ride that the ETS has encountered before the courts, this is a good opportunity to be reminded of the fact that OSHA’s general duty clause, requiring employers to maintain a workplace that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees . . . ” remains intact. To that end, employers should continue taking steps to implement policies and procedures to ensure workplace safety.

We will continue to monitor and report on related legal developments, and those with questions are encouraged to contact a K&S attorney.


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