The highest court in the land has, at long last, weighed in on the permissibility of the federal government’s November 2021 vaccine-or-test rule for large employers. Specifically, on January 13, 2022, the U.S. Supreme Court stayed the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS), which had required that private employers with 100 or more U.S. employees adopt either (1) a mandatory vaccination policy or (2) a policy that allows employees to choose between vaccination and submission of weekly COVID tests (as we previously discussed here).

As a result, employers previously covered by the ETS will not have to comply – at least for now – with its requirements. Below we will discuss the Court’s ruling and, equally if not more importantly, what this means for U.S. employers.

Why did the Supreme Court block the ETS?

In blocking the ETS, the Supreme Court held that Congress did not authorize OSHA to issue such an expansive rule. Essentially, the majority found that the ETS acted like a broad public health standard, whereas OSHA is authorized to issue only workplace standards. Specifically, the Court found that contracting COVID is not a work-related danger or occupational hazard in most workplaces, but is instead a more universal risk. The Court stated that allowing “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.”

Notably, the majority opinion acknowledges that a regulation specifically targeting workplaces where COVID poses a special danger because of the nature of the employee’s job or the workplace (e.g., crowded indoor environments) would be permissible. The Court found, however, that because the ETS was not tailored to address such occupation-specific risks, it is more akin to a general public health measure, rather than an occupational standard. As a result, the Court concluded that OSHA exceeded its authority.

The Court’s opinion notes the stay is effective until the Sixth Circuit issues its opinion; however, if either party files a petition for certiorari after the Sixth Circuit decides the case, the stay will be effective through such time that the Supreme Court denies the cert petition, or if it grants the cert petition, the stay will remain effective until the Supreme Court issues its final opinion.

Following the Supreme Court’s ruling, U.S. Secretary of Labor Marty Walsh issued a statement expressing his disappointment with the decision and stating that OSHA stands by the ETS. He stated that “[t]he commonsense standards established in the ETS remain critical, [and] OSHA will be evaluating all options to ensure workers are protected from this deadly virus.” He continued by urging all employers “to require workers to get vaccinated or tested weekly to most effectively fight this deadly virus in the workplace.” He emphasized that “employers are responsible for the safety of their workers on the job” and that “[r]egardless of the ultimate outcome of these proceedings, OSHA will do everything in its existing authority to hold businesses accountable for protecting workers, including under the Covid-19 National Emphasis Program and General Duty Clause.”

What does the decision mean for U.S. businesses?

The Supreme Court’s stay of the ETS will likely be in effect for at least the foreseeable future. However, given the previous January 10, 2022 initial compliance deadline for the ETS’s non-testing requirements, many employers had already implemented policies and practices to comply with the ETS prior to the Supreme Court’s decision being announced. Employers who have already done so, therefore, have several options at this juncture, including:

  1. Keeping their policies and practices as-is. Based on the Secretary of Labor’s statement, this appears to be OSHA’s preference. Employers who continue to maintain one of the two policies that were previously required by the ETS must now, however, be mindful of conflicting state and local laws, including laws that bar mandatory vaccination policies or expand the circumstances under which workplace accommodations to such policies must be provided. Particularly for multi-jurisdictional employers, therefore, it is imperative to understand whether there are any applicable state or local laws that in some way restrict what would otherwise have been an ETS-compliant policy.
  2. Revising their policies and practices. Under the ETS, employers were required to implement a variety of measures related to vaccination, testing, masking, reporting, and recordkeeping. Because the ETS is stayed, employers can scale back on – or even do away with – those requirements if they would like. Again, however, employers will still need to consider applicable state and local law when making these decisions. In New York City, for instance, mandatory workplace vaccination policies are still required even with the ETS being stayed.

Employers who revise their policies and practices in light of the Court’s decision should also keep in mind that they still have an obligation to protect their employees at the workplace. Stated differently, the Court’s ruling does not impact employers’ obligations under OSHA’s General Duty Clause. Companies should continue to keep that standard in mind, especially as the world deals with yet a new highly-contagious variant.

Regardless of what path employers take, they should continue to remain flexible. While the stay will be in effect for a period of time, we do not know the next steps the federal government will take here. Those steps could include continuing to litigate the case over the ETS or issuing a new iteration of the regulation that is tailored to specific workplaces, a concept that the Supreme Court suggested was more likely to survive judicial scrutiny.

We will continue to monitor developments concerning the ETS.