Supreme Court Blocks OSHA ETS Requiring Vaccination or Testing

Kollman & Saucier
Kollman & Saucier

The Supreme Court today issued a stay blocking the Biden Administration’s COVID-19 vaccination or test rule for employers with 100 or more employees.  NFIB v. OSHA, Nos. 21A244 and 21A247 (Jan. 13, 2022).  The majority found that those challenging the  Emergency Temporary Standard (“ETS”)  “are likely to succeed on the merits of their claim that the Secretary [of Labor] lacked authority to impose the mandate.”

In its, 6-3 per curiam decision, the Court wrote that the ETS exceeds OSHA’s power:

Administrative agencies are creatures of statute.  They accordingly possess only the authority that Congress has provided.  The Secretary ordered 84 million Americans to either obtain a COVID-19 vaccine or undergo weekly medical testing at their own expense.  This is no “everyday exercise of federal power.”  (citation omitted).

The OSH Act, according to the Court, does not authorize the Secretary to set “broad public health measures,” such as the Vaccination/Testing ETS.  COVID-19 is “not an occupational hazard” in most workplaces.  Continuing, the Court wrote:  “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.”

Here is an additional snippet from the majority opinion:

Where the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are plainly permissible.  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.  But the danger present in such workplaces differs in both degree and kind from the everyday risk of contracting COVID–19 that all face.  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.”  (citation omitted).

The ETS is stayed pending further proceedings before the Sixth Circuit Court of Appeals and further action, if sought, by the Supreme Court.

Justice Gorsuch wrote a concurring opinion, joined by Justices Alito and Thomas.  Justices Breyer, Sotomayor, and Kagan dissented.

In a separate opinion, the Court allowed a rule requiring vaccination for workers in nursing homes, hospitals, and other facilities that received Medicare and Medicaid payments to take effect over stays issued by lower federal courts.  Biden v. Missouri, Nos. 21A240 and 21A241 (Jan. 13, 2022).  As stated by the Court:  “We accordingly conclude that the Secretary did not exceed his statutory authority in requiring that, in order to remain eligible for Medicare and Medicaid dollars, the facilities covered by the interim rule must ensure that their employees be vaccinated against COVID-19.”  Justices Thomas, Alito, Gorsuch, and Barrett dissented in the second decision.

The stay of the OSHA ETS by the Supreme Court does not preclude individual employers from implementing a vaccination requirement (or a vaccination or test requirement) or other COVID-19 safety protocols, subject to consideration and processes for accommodations for medical reasons or sincerely held religious beliefs, practices, or observances.

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