On January 13, the Supreme Court put OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) on hold once again, and likely for good. The Supreme Court’s decision follows months
of back-and-forth in the federal courts between certain states and industry leaders challenging the ETS and OSHA defending it. This decision imposes a nationwide stay on implementing and enforcing the ETS. Although the Supreme Court only suspended the ETS while it remains under review by the U.S. Court of Appeals for the Sixth Circuit, that court will likely issue a permanent injunction of the ETS. As a result, employers can disregard OSHA’s previously announced ETS deadlines—the January 10, 2022 deadline to begin compliance efforts and the February 9, 2022 deadline to face citations for noncompliance. The ETS’s suspension, however, does not mean employers will never have to deal with COVID-19 OSHA regulations again as the Court opened the door to revised rules.
The Court reasoned that the ETS’s scope exceeded OSHA’s authority to regulate workplace hazards because COVID-19 exists as much outside the workplace as inside it, much like crime and air pollution. Because the ETS did not target any particular workplace danger from COVID-19 but rather COVID-19 itself as an omnipresent danger, the ETS went beyond OSHA’s statutory authority to address workplace safety. The Court did note, however, that more specific rules targeting a COVID-19 workplace danger could fall within OSHA’s authority, such as one pertaining to “particularly crowded or cramped [workplace] environments.”
The dissenting opinion observed that the Court did not dispute that the ETS fell within the express language of what the OSH Act requires for an emergency rule—a new hazard posing grave danger. Further, the Court seemed to agree with OSHA’s substantial evidence that the rule was necessary to address that danger. Thus, the reasoning from both sides of the Court’s decision offers a path to a revised COVID-19 rule, if only a narrow one.
Whether OSHA goes back to the drawing board to create such a revised rule remains to be seen. For now, however, employers can archive any plans for employee vaccination or testing programs as the ETS no longer has any effect in the workplace or anywhere.