Supreme Court Reviews OSHA COVID-19 Workplace Vaccine Standard

On January 13, 2022, the United States Supreme Court issued a decision to stay OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) that applies to employers with at least 100 employees. Here is a link to the opinion of the Court.

As a result, the enforcement of the ETS has been halted and there are no regulatory obligations to meet under the rule, such as employers needing to determine each employee’s vaccination status and requiring unvaccinated employees to wear face coverings and be subject to weekly COVID testing.

Only a Temporary Stay

While the Court’s decision technically is only a temporary stay of the ETS pending a full review of the legal challenges to the rule by the Sixth Circuit (such as whether the Constitution would allow OSHA to impose the broad-ranging requirements of the ETS), the Court appeared to signal that it believes OSHA exceeded its statutory authority in issuing a workplace standard to address an issue of broad public health. The Court specifically noted that:

"Although 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."

Additional Arguments and Outlook

The Court also stated:

"That is not to say OSHA lacks authority to regulate occupation-specific risks related to COVID–19. Where the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are plainly permissible. . . . But the danger present in such workplaces differs in both degree and kind from the everyday risk of contracting COVID–19 that all face.”

For now, implementation of the rule is blocked and the ETS requirements are not in effect. The substantive legal issues on whether OSHA has authority to issue such a broad-ranging ETS will be argued in the U.S. Court of Appeals for the Sixth Circuit.

If you have any questions or would like additional information, please contact Jeff Hannapel or Christian Richter with NASF at jhannapel@thepolicygroup.com or crichter@thepolicygroup.com.

This update is courtesy of the National Association for Surface Finishing (NASF). For more information or to become a member, visit nasf.org.