As almost everyone knows, the U.S. Supreme Court yesterday reinstated a stay on the "vax-or-test" mandate issued by the Occupational Safety and Health Administration. As a result, the mandate will not take effect until further notice.

The vote was 6-3. The majority consisted of Chief Justice John Roberts, and Justices Samuel Alito, Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh, and Clarence Thomas. Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor dissented, which is no surprise if you listened to the oral argument.

The Court's decision

The Court's opinion was a whopping eight and a half pages, followed by a concurrence and a dissent. The Court called the exemption for outdoor and remote workers "largely illusory," noting that OSHA estimated only nine percent of landscapers and groundskeepers would qualify for the outdoor worker exemption. The Court also called the Emergency Temporary Standard "a blunt instrument" because it made no distinctions among industries or based on different risks of exposure to COVID-19.

The majority found that those challenging the ETS were likely to prevail on their contention that OSHA lacked authority to issue the mandate. Noting that the ETS would affect approximately 84 million workers, the Court said, "This is no 'everyday exercise of federal power.' . . . We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance."

The Court also found that the ETS was not authorized by the Occupational Safety and Health Act, characterizing the ETS as a "broad public health measure[]" rather than an "occupational safety or health standard." (Emphasis in original.)

Finally, the Court found that the equities did not weigh in favor of leaving the ETS in place. Employers and states challenging the ETS contend that the mandate "will force them to incur billions of dollars in unrecoverable compliance costs and will cause hundreds of thousands of employees to leave their jobs. . . . For its part, the [Government] says that the mandate will save over 6,500 lives and prevent hundreds of thousands of hospitalizations."

Without deciding which side was correct, the Court said,

It is not our role to weigh such tradeoffs. In our system of government, that is the responsibility of those chosen by the people through democratic processes. Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly. Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category."

What now?

The stay of the ETS is temporary. It will remain in effect while the case goes back to the U.S. Court of Appeals for the Sixth Circuit for a decision. If the Sixth Circuit rules in favor of the government, the challengers can ask the Supreme Court to review that decision. If the Supreme Court declines to review the case, the stay will end. If the Supreme Court reviews the case, the stay will end after the Court issues a final decision.

Meanwhile, OSHA had this on its website last night:

Statement from Secretary of Labor Marty Walsh on Supreme Court ruling on OSHA emergency temporary standard on vaccination, testing

(January 13, 2022)

WASHINGTON – U.S. Secretary of Labor Marty Walsh issued the following statement on the Supreme Court ruling on the department’s Occupational Safety and Health Administration’s emergency temporary standard on vaccination and testing:

“I am disappointed in the court’s decision, which is a major setback to the health and safety of workers across the country. OSHA stands by the Vaccination and Testing Emergency Temporary Standard as the best way to protect the nation’s workforce from a deadly virus that is infecting more than 750,000 Americans each day and has taken the lives of nearly a million Americans.

“OSHA promulgated the ETS under clear authority established by Congress to protect workers facing grave danger in the workplace, and COVID is without doubt such a danger. The emergency temporary standard is based on science and data that show the effectiveness of vaccines against the spread of coronavirus and the grave danger faced by unvaccinated workers. The commonsense standards established in the ETS remain critical, especially during the current surge, where unvaccinated people are 15-20 times more likely to die from COVID-19 than vaccinated people. OSHA will be evaluating all options to ensure workers are protected from this deadly virus.

“We urge all employers to require workers to get vaccinated or tested weekly to most effectively fight this deadly virus in the workplace. Employers are responsible for the safety of their workers on the job, and OSHA has comprehensive COVID-19 guidance to help them uphold their obligation.

“Regardless 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 should employers who would have been covered by the ETS do?

First, if you are in a state that requires employers to mandate vaccination or testing, then you will still need to comply with state law.

Second, if you are in a state (such as Florida or Texas) that restricts employers' ability to impose vaccination mandates, it's safe to start complying with your state law now.

For everybody else, I'm going to rehash-and-update what I wrote in November, shortly after the ETS was issued and then stayed by the U.S. Court of Appeals for the Fifth Circuit.

  • By now, you should have a corporate philosophy on vaccine mandates. If you want to mandate vaccination regardless of the ETS, then have at it, as long as you make reasonable accommodations for employees with disabilities and religious objections. If you want to vax and test, then do it (but good luck finding tests). If you don't want to mandate vaccination at all, then don't. Just be sure you are taking all other recommended precautions to prevent transmission of COVID in the workplace.
  • If you had your ETS-compliant written materials ready to distribute, don't distribute them now, but save them so you are ready for whatever the final decision from the courts will be.
  • In November, I recommended that "vax-and-test" employers shop for a testing vendor and make all necessary preparations but not sign any irrevocable contracts. I hope you listened to me! If you did sign a contract, you might want to contact the testing vendor and see whether you can amend or annul your agreement.
  • I also recommended in November that employers not communicate with employees about the vaccination or testing requirements unless they planned to impose those with or without an ETS. Why unnecessarily antagonize your workforce if you can avoid it? If you never said anything to employees, then you don't have to say anything now. The same is true if you have told employees that you are going to proceed with a mandate whether the ETS is in place or not. But if you told your employees about the ETS requirements and do not want to impose them now that you don't have to, then you should put together a brief communication to employees saying that, in light of yesterday's Supreme Court decision, you no longer plan to require vaccination or testing for unvaccinated employees. And, just to be on the safe side, I would add something to the effect that "If the vaccination mandate is ultimately upheld in a final decision from the courts, of course XYZ Company will comply."
  • Put your feet up, have a glass of wine, and enjoy this reprieve!