On Thursday, January 13, 2022, the U.S. Supreme Court issued a stay pausing implementation of the Occupational Safety and Health Administration Emergency Temporary Standard, finding that the challengers to the ETS are likely to prevail. Justices John Roberts, Amy Coney Barrett, and Brett Kavanaugh issued the decision to stay the OSHA ETS. Justices Samuel Alito, Neil Gorsuch, and Clarence Thomas concurred with their own separate opinion. Justices Sonia Sotomayor, Stephen Breyer, and Elena Kagan dissented.

The immediate effect of the Supreme Court’s decision is to prevent OSHA from implementing the ETS, pending a final decision from the Sixth Circuit on the challenges to the ETS. Given the nature of the Supreme Court’s decision, and its rationale, however, it certainly appears that the OSHA ETS will not be implemented in its current form.

As such, employers who would have been subject to the ETS and have begun to develop an ETS compliant policy should evaluate whether to continue with their efforts. In doing so, such employers may want to consider the following:

• The U.S. Equal Employment Opportunity Commission has stated that federal law does not, generally, prohibit employers from implementing a vaccine or testing mandate, subject to the reasonable accommodation provisions of Title VII, the Americans with Disabilities Act, and other considerations.
• Some states have adopted, or are in the process of adopting, state laws that prohibit or limit private employers’ ability to impose vaccine or testing mandates on their employees.
• Some states with state OSHA plans have already adopted the OSHA ETS, or will adopt a version of the OSHA ETS, and may maintain their state version of it despite the Supreme Court’s decision.
• Federal contractors may be subject to the federal contractor vaccine mandate when the Eleventh Circuit resolves the challenges to that mandate, which are still being briefed before the Eleventh Circuit.

Therefore, adoption or compliance with a vaccine/testing requirement will currently be an issue that will have to be decided based on applicable state and local laws and the employer’s policy decision on how to address the issues raised by COVID-19.

Oregon OSHA has announced that it will not be implementing a COVID-19 vaccine in light of the Supreme Court’s decision. Oregon OSHA issued the following statement on its website:

On Jan. 13, 2022, the U.S. Supreme Court blocked enforcement of federal OSHA’s Vaccination and Testing Emergency Temporary Standard.

Oregon OSHA will continue to monitor federal OSHA activities and respond as needed. In light of the Supreme Court decision, however, Oregon OSHA will not move forward with adopting the same or similar standard in Oregon.

Oregon OSHA had engaged in discussions with stakeholders of such a rule adoption. It did so under the “at least as effective as” federal OSHA requirement, which was prompted by adoption of the federal standard.

Oregon OSHA maintains a COVID-19 rule that requires employers to implement protections for workers. Those protections include infection control planning, exposure risk assessments, sanitation, and notification. Those measures also require employers to follow the Oregon Health Authority’s requirement to use facial coverings indoors.

Oregon OSHA offers employers and workers free resources for maintaining safe and healthy workplaces, including consultation services, experts, and education and training.

The following is a short summary of the Supreme Court’s decision.

The Supreme Court’s primary conclusion is that “[a]pplicants are likely to succeed on the merits of their claim that the Secretary [of Labor] lacked authority to impose the mandate.” The Court found that given the breadth and extent of the OSHA ETS, the 1970 Occupational Safety and Health Act, which established OSHA and its existence within the Department of Labor, needed to “plainly authorize” the Secretary’s mandate. The Court found that it did not because the Act only addresses workplace safety and does not address public health generally, “which falls outside of OSHA’s sphere of expertise,” and

[a]lthough COVID–19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases. Permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization.

The Court did agree that “[w]here the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are plainly permissible.” But, “OSHA’s indiscrimi­nate approach fails to account for this crucial distinction—between occupational risk and risk more generally—and ac­cordingly the mandate takes on the character of a general public health measure, rather than an ‘occupational safety or health standard.’ 29 U. S. C. §655(b) (emphasis added).”

Justices Alito, Gorsuch, and Thomas concurred with Justices Roberts, Barrett, and Kavanaugh, and used their concurrence to focus on who has the authority to implement a vaccination or testing regime such as the ETS, concluding that the power rests in the states and Congress:

The question before us is not how to respond to the pan­demic, but who holds the power to do so. The answer is clear: Under the law as it stands today, that power rests with the States and Congress, not OSHA. In saying this much, we do not impugn the intentions behind the agency’s mandate. Instead, we only discharge our duty to enforce the law’s demands when it comes to the question who may govern the lives of 84 million Americans. Respecting those demands may be trying in times of stress. But if this Court were to abide them only in more tranquil conditions, decla­rations of emergencies would never end and the liberties our Constitution’s separation of powers seeks to preserve would amount to little.

Finally, Justices Sotomayor, Breyer, and Kagan dissented, arguing that “[a]cting outside of its competence and without legal basis, the Court displaces the judgments of the Government officials given the responsibility to respond to workplace health emergencies.” The dissenting justices would have found that OSHA’s statutory authority clearly permitted OSHA to issue the ETS:

OSHA’s rule perfectly fits the lan­guage of the applicable statutory provision. Once again, that provision commands—not just enables, but commands—OSHA to issue an emergency temporary standard whenever it determines “(A) that employees are exposed to grave danger from exposure to substances or agents deter­mined to be toxic or physically harmful or from new haz­ards, and (B) that such emergency standard is necessary to protect employees from such danger.” 29 U. S. C. §655(c)(1). Each and every part of that provision demands that, in the circumstances here, OSHA act to prevent work­place harm.

Responding to the majority’s claim that OSHA’s ETS exceeds its mandate to regulate only workplace hazards, the dissenting justices focused on the fact that while the ETS may have impacts beyond the workplace, it only applies to the workplace:

Contra the majority, it is in­different to whether a hazard in the workplace is also found elsewhere. The statute generally charges OSHA with “as­sur[ing] so far as possible . . . safe and healthful working conditions.” 29 U. S. C. §651(b). That provision authorizes regulation to protect employees from all hazards present in the workplace—or, at least, all hazards in part created by conditions there. It does not matter whether those hazards also exist beyond the workplace walls. The same is true of the provision at issue here demanding the issuance of tem­porary emergency standards. Once again, that provision kicks in when employees are exposed in the workplace to “new hazards” or “substances or agents” determined to be “physically harmful.” §655(c)(1). The statute does not re­quire that employees are exposed to those dangers only while on the workplace clock. And that should settle the matter. When Congress “enact[s] expansive language offer­ing no indication whatever that the statute limits what [an agency] can” do, the Court cannot “impos[e] limits on an agency’s discretion that are not supported by the text.” Lit­tle Sisters of the Poor Saints Peter and Paul Home v. Penn­sylvania, 591 U. S. ___, ___ (2020) (slip op., at 16) (altera­tion and internal quotation marks omitted). That is what the majority today does—impose a limit found no place in the governing statute.

This article summarizes aspects of the law and does not constitute legal advice. For legal advice for your situation, you should contact an attorney.