As Omicron continues to surge and cause record-level infections, with corresponding worker absences due to COVID-19 illnesses and quarantines, the U.S. Supreme Court on January 13 stayed enforcement of the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standards (ETS). Those standards mandated that employers with 100 or more employees require employees to receive the COVID-19 vaccine or, alternatively, to test (on the worker’s own time and expense) on a weekly basis and wear masks at work.
As soon as OSHA issued the controversial vaccination/testing ETS on November 5, 2021, a flurry of legal challenges were brought by various states, business groups, and trade organizations throughout the country. The Fifth Circuit Court of Appeals initially issued a stay of the ETS. However, when the cases were consolidated and assigned by lottery to be reviewed by the Sixth Circuit Court of Appeals, the Sixth Circuit lifted the stay. Groups challenging enforcement of the ETS immediately applied to the U.S. Supreme Court to re-impose the stay in light of a looming January 10, 2022 effective date. In a per curiam decision, in Nat’l Fed. Of Independent Businesses v. DOL, OSHA and Ohio v. DOL, OSHA, six members of the Court ruled that the Applicants seeking a stay of the ETS were likely to prevail on the merits that OSHA had exceeded its statutory authority in enacting the ETS, and granted a stay pending disposition of the underlying petitions before the Sixth Circuit. The Court reasoned that OSHA was responsible for implementing occupational safety standards and rules in the workplace, and not general public health orders (which were within the province of local and state public health officials and legislative bodies). Moreover, the Court found that OSHA had not demonstrated sufficient grounds to utilize the emergency temporary standards and bypass the public notice, comment and public hearing requirements of its rulemaking process. The ETS, which was estimated to affect over 84 million workers nationwide with very few exceptions, was deemed by the Court’s majority to be an inappropriate “blunt instrument” that made no distinctions based on the risk of exposure to COVID-19 presented by different industries and workplace settings (everyone from lifeguards to medics to meat packers). The majority seemed particularly troubled by the fact that a Senate majority had voted to disapprove the ETS on December 18, 2021.
Dissenting from the majority, Justices Breyer, Sotomayor, and Kagan argued that OSHA was clearly well within its rulemaking authority to address the dangers and hazards presented by COVID-19 exposures and infections in the workplace, and the fact that COVID-19 permeates every facet of our daily lives in our homes, schools, and social settings does not lessen its impact in the workplace. The dissent analogized the ETS to similar OSHA safety regulations that addressed common hazards like the risks of fire, faulty electrical installation, or inadequate emergency exits that exist in the workplace. Emphasizing the evidence presented by OSHA that the six-month duration of the ETS would save an estimated 6500 lives and 250,000 hospitalizations (which estimates were likely to be low given the rate of infections and hospitalizations in recent weeks), the dissent was dismayed that the Court had usurped the rulemaking authority of experts who should know more about protecting American workers than jurists.
Given the Biden Administration’s focus on vaccination as a key tool to fight the COVID-19 pandemic, this is surely not the last we will hear about the dispute over governmental directives requiring mandatory vaccination policies. Indeed, even the Court’s majority acknowledged that OSHA can regulate occupational specific risks related to COVID-19, such as researchers who work with the virus or workers in crowded/cramped environments. In a separate case, the Court upheld a rule promulgated by Health and Human Services mandating vaccination for healthcare workers at facilities participating in Medicare and/or Medicaid. In light of this temporary reprieve from OSHA’s ETS, employers should review their COVID-19 prevention plans to evaluate risks presented by COVID-19 exposure to their particular workforce and implement appropriate mitigation measures.
