On January 13, 2022, the United States Supreme Court stayed enforcement of the federal Occupational Safety and Health Administration’s (OSHA’s) Vaccination and Testing Emergency Temporary Standard (ETS). As we have previously explained, this standard would have required covered employers (with 100+ employees) to develop, implement, and enforce a mandatory vaccination policy, with an exception for covered employers who instead adopt a policy requiring employees to either get vaccinated or elect to undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination. (See WTK’s alert on the ETS here.) However, over a vigorous dissent, the majority of the Supreme Court stayed enforcement of the ETS, finding that the opponents of the standard were likely to prevail on their argument that the standard exceeds OSHA’s statutory authority and is otherwise unlawful. 

The majority’s decision emphasized that OSHA is tasked with ensuring occupational safety focused on the workplace, but – according to the majority – COVID-19 is not an occupational hazard but is instead a “universal risk.”  Therefore, the vaccination or testing mandate, which the majority describes as” a significant encroachment into the lives – and health – of a vast number of employees,” exceeds OSHA’s authority. 

The majority criticized the ETS as a “blunt instrument,” which drew “no distinctions based on industry or risk of exposure to COVID-19” and indicated OSHA might be able to impose more targeted regulations where “the virus poses a special danger because of the particular features of an employee’s job or workplace.”

Justices Breyer, Sotomayor, and Kagan dissented.  They would have held that the ETS is within OSHA’s mission “to ‘protect employees’ from ‘grave danger’ that comes from ‘new hazards’ or exposure to harmful agents.”  Furthermore, they would have held that the risk of death and hospitalization attendant to staying enforcement of the rule outweighed any possible economic harms from allowing the rule to proceed.  They were, however, outvoted by the other six justices on the Court.

Employers should note that the Supreme Court’s holding relies on the fact that the ETS was issued by a federal administrative agency and says nothing about whether vaccine mandates by private businesses or states are permissible.  Additionally, the lawsuits concerning the ETS will continue in the lower courts and there may be further rulings on this issue.  But in the meantime, large employers no longer need to comply with the Vaccination and Testing ETS. 

Please feel free to contact any member of the WTK employment team to discuss how your business should respond to these latest developments.