100+ Employers Are Not Required to Comply with OSHA’s ETS After Supreme Court Ruling, for Now

Brownstein Hyatt Farber Schreck

Yesterday, the Supreme Court released its opinion in National Federation of Independent Business v. Department of Labor and Ohio v. Department of Labor. Concluding that OSHA’s proposed emergency temporary standard (ETS) was a “workaround” attempting to regulate public health broadly, as opposed to occupational hazards specifically, the court found that applicants are likely to prevail on the merits, such that the per curiam opinion grants the applications for emergency stay and thus blocked OSHA from enforcing its vaccine-or-test regime pending full review by the Sixth Circuit. A concurring opinion was drafted by Justice Gorsuch, which Justice Thomas and Justice Alito joined, along with a dissenting opinion, penned by Justice Breyer, Justice Sotomayor and Justice Kagan.

The per curiam opinion begins with a focus on the text of the Occupational Safety and Health (OSH) Act. In particular, it emphasizes the multiple references to “employment” in the statute, noting that the Act was intended to 1) ensure “safe and healthful working conditions” and 2) empower the Department of Labor (DOL) to promulgate such standards as are “reasonably necessary or appropriate to provide safe or healthful employment” (emphasis added in opinion). After a review of the factual and procedural history, the court then explains that the ETS in question here is no ordinary exercise of the federal government’s power, but an “encroachment into the lives—and health—of a vast number of employees.”

Reiterating its previously stated expectation for Congress to “speak clearly” in such asserted expansions of federal power, the court then concludes that the OSH Act does not plainly authorize OSHA’s actions in this regard. The OSH Act, in the majority’s view, limits its delegation of authority to matters of workplace safety, not of the broader or universal public health: “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.” It found that COVID-19 is not an occupational hazard in most workplaces, but rather a universal risk in work and non-work settings alike; thus, the risk does not plainly fall within the scope of OSHA’s statutory authority and the ETS fails the major-questions doctrine’s test.

The court did, however, indicate a willingness to entertain more industry- or job-specific regulations. “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.”

Justice Gorsuch’s concurring opinion focuses mainly on separation of powers principles. Like the per curiam opinion, it highlights the unprecedented nature of the ETS, in comparison with OSHA’s “comparatively modest” previous invocations of authority (e.g., to regulate workplace fires, ensure the safety of electrical installations, etc.). The opinion diverges its focus from statutory interpretation to discuss the harm to the constitutional structure that OSHA’s assertion of authority would do. The major questions doctrine and the nondelegation doctrine are intended to ensure that the democratically accountable members of Congress are charged with acting on the people’s behalf, and not allowed to farm out its responsibility to unelected officials in the executive branch. The question of who has power to act is clear, in the concurring opinion’s view: that power rests with Congress and the states, not with OSHA.

The dissenting opinion, jointly written by the three Democratic-appointed justices, spurns their conservative colleagues’ “serious[] misappli[cation of] the applicable legal standards.” In the justices’ joint view, none of the standards required to grant an emergency stay are met here. 1) Applicants are unlikely to prevail on the merits, because “OSHA’s view perfectly fits the language of the applicable statutory provision.” After a lengthy explanation of the statutory text, the dissent concludes that OSHA was not just authorized but commanded by Congress (through the OSH Act) to act in this way. 2) Even if the question of whether the applicants would succeed on the merits were close, which the dissent believes it is not, the applicants fail to show that the balance of harms favors a stay. The dissent relies on OSHA’s findings to reiterate that the asserted economic harms to employers are exaggerated and in any event do not outweigh the public interest in protecting the lives and health of workers. The dissent then concludes with a brief discussion of the separation of powers. In the dissenters’ view, an unelected court has no role to supplant its own view of workplace safety matters over an executive agency’s conclusions. “Without legal basis, the Court usurps a decision that rightfully belongs to others.”

What now?

From a practical perspective, at present, employers are not required to come into compliance with OSHA’s ETS. However, the Centers for Medicare & Medicaid Services (CMS) vaccine requirement for workers at medical facilities that participate in Medicare and Medicaid was upheld. Additionally, the vaccine mandate for federal contractors remains in effect.

Furthermore, employers will continue to be subject to other existing federal, state and local rules that govern workplace safety and vaccines in the workplace, as those rules will continue to evolve. Although the OSHA ETS will not become effective at present, its impact will be long-lasting in that it has provided employers with the framework for vaccine and testing programs in the workplace. And, this court’s opinion provided an opening for industry-, job-, and/or occupation-specific vaccination rules; we expect to see more movement at the state and local levels with the void left by the federal standard stay. In this ever-changing landscape, employers would be well advised to continue ensuring that their short- and long-term strategies appropriately balance workplace safety, risk and compliance.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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