Background

On September 9, 2021, President Joseph R. Biden announced a 6-point plan to “beat the pandemic,” partially by requiring COVID-19 vaccinations whenever possible.

On November 5, 2021, OSHA published the Emergency Temporary Standards (ETS) requiring employers with 100 or more employees:

• To ensure their workforce is fully vaccinated, or
• To test weekly for those who remain unvaccinated
• To provide paid time off to get vaccinated

The ETS was meant to cover approximately 80 million American workers.

Within two days of the publication, the 5th Circuit Court of Appeals temporarily stayed the ETS, deciding they raised statutory and constitutional concerns. However, on December 17, 2021, the Sixth Circuit lifted the stay.

Eventually, the matter reached the United States Supreme Court. On January 7, 2022, the Supreme Court heard oral arguments from the parties, and on January 13, 2022, issued its decision.

Supreme Court’s Ruling

In its ruling, the Supreme Court criticized the wide application of the rule, with no distinctions based on industry or risk of exposure to COVID-19.

The Supreme Court further held that OSHA lacked authority to impose the vaccine/testing mandate; requiring “84 million Americans to either obtain a COVID-19 vaccine or undergo weekly testing at their own expense” is no “everyday exercise of federal power.” The ETS further attempts to regulate daily life, an authority which OSHA does not possess.

Additionally, the fact that OSHA did not put similar rules into effect in the past further undermines the agency’s authority to promulgate the ETS:

It is telling that OSHA, in its half century of existence, has never before adopted a broad public health regulation of this kind—addressing a threat that is untethered, in any causal sense, from the workplace. This “lack of historical precedent,” coupled with the breadth of authority that the Secretary now claims, is a “telling indication” that the mandate extends beyond the agency’s legitimate reach. Despite the decision to block the rule, the Court indicated that targeted and industry/risk specific rules, would likely be permissible.

California Employers May Mandate Vaccine Policies

Despite the Supreme Court’s ruling, California employers may implement their own vaccine and/or testing requirements. Employers, however, may need to grant exemptions of such policies, based on employees’ medical condition or sincerely held religious beliefs.

In a statement issued after the Supreme Court’s ruling, U.S. Secretary of Labor Marty Walsh stated:

I am disappointed in the court’s decision, which is a major setback to the health and safety of workers across the country…

The commonsense standards established in the ETS remain critical, especially during the current surge, where unvaccinated people are 15-20 times more likely to die from COVID-19 than vaccinated people. OSHA will be evaluating all options to ensure workers are protected from this deadly virus.

We urge all employers to require workers to get vaccinated or tested weekly to most effectively fight this deadly virus in the workplace…

Employers who wish to implement COVID-19 related policies at work should consult an employment attorney to better assess compliance with federal, state and local laws.