Private employers with more than 100 employees are breathing a sigh of relief this afternoon following the U.S. Supreme Court’s decision staying implementation of the OSHA Private Employer Vaccine or Test Emergency Temporary Standard (Private Employer ETS).
The Private Employer ETS, effective January 10, 2022, would have required businesses with 100 or more employees to ensure, among other things, that all of their employees be either fully vaccinated or tested weekly for COVID-19. In its opinion staying implementation of Private Employers ETS, the Court wrote: “Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given the Agency the power to regulate public health.”
It should be noted that the Court’s opinion implements a stay of the Private Employer ETS pending a decision by the U.S. Sixth Circuit Court of Appeals and all subsequent appeals to the U.S. Supreme Court on the legality of the Private Employer ETS.
In our opinion, it is highly unlikely that all appeals can be concluded before expiration of the six (6) month Private Employer ETS and even if they could it is unlikely that subsequent appeals to the Supreme Court will result in a ruling that OSHA acted within its authority in implementing the Private Employer ETS. In short, today’s ruling likely ended the Private Employer ETS.
Employers may still choose to implement their own vaccine requirements.
