On January 13, 2022, the United States Supreme Court stayed the vaccine-or-test mandate issued by the Occupational Safety and Health Administration (“OSHA”) for private sector employers with 100 or more employees.[1]  This article addresses some of the big questions businesses have had about the Supreme Court’s decision and its impact on them.

So, what did the Supreme Court actually rule?  In sum, the Court ruled that OSHA had to stop enforcing the Emergency Temporary Standard (“ETS”) that contained the vaccine-or-test mandate.

Why did the Court force OSHA to stop enforcing the ETS?  The Court concluded that OSHA exceeded its authority when it enacted the ETS.  According to the Court, OSHA is responsible only for setting “workplace safety standards, not broad public health measures.”  The Court concluded that the ETS – which would affect up to 84 million Americans – was the latter and therefore beyond OSHA’s power.

Is this the final nail in the coffin or could the ETS come back (again)?  The Court’s ruling came at the preliminary stages of litigation, which means that last week’s decision is not “final.”  But for all practical purposes the Court’s decision is almost certainly the end of the road for the ETS.   

It is certainly possible that the Court’s decision encourages OSHA to attempt to rewrite its rule more narrowly or to be more targeted toward certain industries where COVID-19 could have a more disparate impact.[2] It is also possible that OSHA could try to prepare new rules through the notice-and-comment process. Employers should therefore stay alert at the possibility of new OSHA rules, especially in industries that may be especially susceptible to COVID-19 related problems.

Does this mean I can stop taking steps to comply with the ETS?  Yes.   

How did we get here again? The mandate, originally announced by President Biden on September 9, 2021, was implemented by the ETS issued by OSHA on November 5, 2021. The United States Court of Appeals for the Fifth Circuit stayed the ETS later in November. Similar cases from all over the country were consolidated and assigned to the United States Court of Appeals for the Sixth Circuit, which dissolved the Fifth Circuit’s stay on December 17, 2021, allowing the ETS to go into effect.

After the ETS went into effect, multiple parties, including the National Federation of Independent Business and a coalition of states, filed applications to the Supreme Court to stay the ETS. The Supreme Court consolidated two applications, heard oral argument on January 7, 2022, and issued this decision less than a week later.

[1] In a separate decision, the U.S. Supreme Court permitted the Centers for Medicare & Medicaid Services to begin enforcing, nationwide, its healthcare worker vaccine mandate, which applies to most facilities that receive Medicare or Medicaid funding (the “CMS rule”).

[2]  The Supreme Court’s ruling on the CMS rule signals that more targeted rulemaking from OSHA could pass Supreme Court muster.