Yesterday the Supreme Court stayed the Occupational Health and Safety Administration’s (OSHA) vaccination and testing emergency temporary standard (ETS), resolving months of legal uncertainty over its fate. In blocking the rule requiring larger employers to ensure that employees are either vaccinated against or test weekly for COVID-19, the Court held that it is likely that OSHA does not have the rulemaking authority to adopt such an extensive public health measure across all industries.

While this decision likely marks the end of this OSHA ETS1, it comes at a time when reported COVID-19 case counts in the United States are at an all-time high. And with the Court’s majority opinion suggesting that narrower regulation might be permissible, it is possible that OSHA may issue a new rule tailored to specific industries where COVID-19 poses a special danger. Employers may likewise face new state regulations spurred by the Court’s focus on states’ rights, some aimed at combating COVID-19 in the workplace and others prohibiting some mandatory protective measures.

Vaccine or Test ETS

As explained in a prior WilmerHale alert, the now-stayed ETS (originally published on November 5, 2021, with December 5, 2021 and January 4, 2022 compliance deadlines) called for employers with more than 100 employees to require employees at covered workplaces to either be fully vaccinated or wear masks and submit to weekly testing, subject to reasonable accommodations for specific religious and medical circumstances. The rule also included a host of record-keeping and other administrative requirements.

Procedural History

Immediately after OSHA published the ETS, petitioners—primarily states and business associations—filed lawsuits in most circuit courts across the country, arguing, among other things, that OSHA did not have the authority to issue such a sweeping ETS. The Fifth Circuit initially stayed the ETS nationwide on November 6, 2021, and the lawsuits were then consolidated and transferred to the Sixth Circuit following a lottery to choose a venue.

On December 17, 2021, the Sixth Circuit dissolved the stay, finding that OSHA likely has statutory authority to issue the ETS and rendering the ETS enforceable. OSHA then published updated enforcement deadlines of January 10, 2022 (all requirements except testing, including the deadline by which employers must determine the vaccination status of each employee) and February 9, 2022 (testing for unvaccinated employees). The Supreme Court deferred ruling on the many emergency stay applications pending oral argument, prompting covered employers across the country to prepare to comply with the ETS amid uncertainty as to its fate.

Supreme Court Proceedings and Decision

On January 7, 2022, the Supreme Court heard oral argument in a special sitting. In the nearly two-hour session, the justices focused on whether OSHA had statutory authority to issue the ETS, whether public health matters should be determined by the executive or Congress and states, and whether entering a stay was in the public interest.

Yesterday, the Supreme Court stayed the ETS in a 6-3 per curiam opinion.2 In holding that OSHA did not have authority to issue the ETS, the Court wrote that the Occupational Safety and Health Act empowers OSHA to set “workplace safety standards, not broad public health measures” (emphasis in original). The Court emphasized that COVID-19 does not constitute an occupational hazard in most workplaces, and that permitting OSHA to regulate the universal hazards of daily life—such as crime, air pollution or communicable disease—would “significantly expand OSHA’s regulatory authority without clear congressional authorization.” The Court also posited, however, that OSHA could regulate in spaces where “the virus poses a special danger because of the particular features of an employee’s job or workplace,” signaling that a different ETS, narrowly tailored to address COVID-19 in the workplace, could fare better in future challenges.

In a concurring opinion, Justice Gorsuch, joined by Justice Thomas and Justice Alito, wrote that the power to respond to a pandemic rests with the states and Congress, not OSHA. In their dissent, Justices Breyer, Kagan and Sotomayor focused on the “Federal Government’s ability to counter the unparalleled threat that COVID-19 poses to” workers. They reasoned that the fact that COVID-19 arises both inside and outside the workplace does not lessen OSHA’s authority to promulgate rules to protect employees in the workplace, and that the public interest in protecting workers from disease and death “overwhelms the employers’ alleged costs” in terms of economic harm.

The case now returns to the Sixth Circuit for that court’s review of the merits, with any decision rendered a potential subject of petitions for certiorari. However, because the ETS is an emergency standard, it expires sixth months after promulgation, in May 2022. Briefing, oral argument and a court’s review take time, so it is unlikely that merits review by both courts would occur in the next several months, unless expedited. And perhaps more importantly, it is unlikely that the ETS will withstand further judicial scrutiny by the Sixth Circuit given the Supreme Court’s finding that OSHA exceeded its statutory authority in issuing the ETS. Accordingly, a permanent stay of the ETS is the most probable outcome.

Implications for Employers

Now that the ETS has been stayed by the Supreme Court, employers no longer need to meet OSHA’s compliance deadlines, including implementation of OSHA’s weekly testing protocols for unvaccinated employees.3 Employers will, however, still need to comply with any applicable state and local COVID-19 regulations.4

With the continued spread of the omicron variant, more localities are reissuing universal mask mandates and some cities are even requiring vaccination for certain private-sector employees. For example, in Boston, employers need to ensure that workers at restaurants, fitness centers and indoor entertainment venues are fully vaccinated against COVID-19, and in New York City, all workers who perform in-person work or interact with the public must be vaccinated. On the other hand, employers in other locations that implemented vaccination and testing policies in compliance with the ETS must now ensure that those policies do not run afoul of state rules or orders limiting or restricting such mandates. With the ETS stayed, there is no longer an argument that contrary state rules are preempted. Accordingly, those state rules are back in play, such as Texas’s Executive Order GA-40, which does not allow businesses to “compel receipt of a COVID-19 vaccine by any individual . . . who objects to such vaccination for any reason of personal conscience,” a broader exemption than those required under the ETS.

Employers should expect more regulation from state and local governments in this space—some in support of vaccine mandates or other preventive measures and others limiting or restricting employers’ ability to implement such mandates—and revisit their vaccination policies to ensure compliance.

Conclusion

The litigation battle of the past few months likely reached its conclusion yesterday. As of January 13, 2022, employers are not required to comply with the ETS, and given the Supreme Court’s opinion, the ETS is unlikely to withstand further judicial scrutiny. OSHA may choose to promulgate new emergency rules targeting COVID-19 in specific industries and workplaces instead. In the interim, employers should focus compliance efforts on state and local regulations. WilmerHale is continuing to monitor these developments and the implications for employers operating across the country.