Today, January 13, 2022, the Supreme Court stayed the OSHA ETS rule requiring employers with 100 or more employees mandate all employees either be vaccinated or test weekly. The Supreme Court is returning the case to the Sixth Circuit to review the merits of the OSHA ETS. Regardless of the Sixth Circuit decision on the merits, the stay will remain in place until the Supreme Court either rules on the Sixth Circuit’s decision or there is no timely appeal of the Sixth Circuit’s decision. Even if OSHA pursues a decision on the merits and the Sixth Circuit upholds the OSHA ETS, the Supreme Court will not allow the Rule to go into place as drafted.
The Supreme Court decision is a “per curiam” decision, meaning the author is not identified, and the justices who voted to put the stay in place are not identified. It is a ruling “on behalf of the Court.” We know Justices Alito, Gorsuch, and Thomas voted in favor of the stay because they wrote or joined in a concurring opinion. We know Justices Kagan, Sotomayor, and Breyer voted against a stay because they wrote or joined a dissent. Though we have no way of knowing, it is fair to assume Justices Kavanaugh and Barrett voted in favor of the stay (Barrett voted in favor of a stay in the CMS case). It is very likely Chief Justice Roberts also voted in favor of the stay as the per curiam opinion is most in line with the questions posed by Chief Justice Roberts during oral argument.
The Supreme Court put a stay in place because, “Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly." Further, "Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category. OSHA’s indiscriminate approach fails to account for this crucial distinction—between occupational risk and risk more generally—and accordingly the mandate takes on the character of a general public health measure, rather than an ‘occupational safety or health standard.’” The Supreme Court supported this reasoning by observing, “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” and “[t]he regulation otherwise operates as a blunt instrument. It draws no distinctions based on industry or risk of exposure to COVID-19.” The opinion leaves open the possibility for OSHA to craft a similar rule for workplaces that have an enhanced risk of covid exposure, such as “researchers who work with the Covid-19 virus” or workplaces where employees work in “particularly crowded or cramped environments.” It seems unlikely OSHA would create or adopt such a rule at this time, though we cannot rule out the possibility.
At this time, employers should not anticipate having to comply with the OSHA ETS in its current form. Based on the Supreme Court’s opinion, employers will not be required to comply with the vaccinate or test requirement under the OSHA ETS. It is possible, in reviewing the merits, the Sixth Circuit finds select aspects of the OSHA ETS, such as masking for unvaccinated employees at work or the requirement to remove employees from work who test positive, are sufficiently related to occupational risk for those requirements in the OSHA ETS to go into place. However, if that did occur, employers would not be required to comply until after both the Sixth Circuit and the Supreme Court ruled on the issue.
Employers located in states with State-run OSHA plans are unlikely to see those states implement new requirements that mandate vaccines and testing. The Supreme Court was concerned with the exercise of this power by agencies stating: “it “would dash the whole scheme” of our Constitution and enable intrusions into the private lives and freedoms of Americans by bare edict rather than only with the consent of their elected representatives.” Finally, Congress is not likely to issue a mandate either. As noted by the U.S. Supreme Court, a majority of the U.S. Senators voted in favor of an action disapproving of the OSHA ETS.