Supreme Court Reimposes Nationwide Stay of OSHA’s Large Employer Vaccination or Test Mandate

In a decision issued Jan. 13, 2022, the United States Supreme Court—in a 6-3 decision following party lines—issued an opinion staying the enforcement of the Occupational Safety and Health Administration (OSHA)’s large employer COVID-19 vaccination or testing Emergency Temporary Standard (ETS). As we previously reported in November 2021, through the ETS, OSHA implemented a mandate that employers with 100 or more employees must require all employees to either be vaccinated against COVID-19 or engage in weekly testing, among other things. The ETS has gone through several legal challenges since it was issued, with the Fifth Circuit Court of Appeals first imposing a stay, the Sixth Circuit lifting that stay, and now the Supreme Court again staying enforcement of the ETS. While the court’s opinion does not invalidate the ETS—it only temporarily stays it—the court’s actions signal that the ETS would be dead on arrival if the merits of the case ever come before the court, which will likely influence the decision making of the Sixth Circuit’s three-judge panel that initially decided to lift the stay as it considers a final ruling on the merits of whether to permanently enjoin the ETS.

What This Means for Employers

As it stands now, the enforcement of the ETS—including the requirement that employers implement a mandatory vaccination policy or otherwise require worker testing beginning February 9, 2022—is no longer effective. While employers can voluntarily implement their own COVID-19 policies, or may be required to do so under state or local law, they are no longer currently required to do so by OSHA. Similarly, state OSHA plans are also no longer under a mandate from federal OSHA to adopt the ETS or to come up with their own standards.

As to next steps, the stay technically only lasts until a decision on the merits of the challenge to the ETS is resolved by the Sixth Circuit. That said, because the court’s majority clearly stated that the challenges to the ETS are likely to succeed on their claim that OSHA “lacked authority to impose the mandate,” as a practical matter the ETS itself is likely dead in the water.

Details Regarding the Opinion: The Majority Opinion and Concurrence

The court majority based its decision, in part, upon its belief that “[t]he regulation otherwise operates as a blunt instrument. It draws no distinctions based on industry or risk of exposure to COVID-19,” and in doing so found that OSHA overstepped its bounds by issuing the ETS. Put differently, the majority held that the ETS, which seeks to remedy a public health danger, overstepped OSHA’s authority to regulate “work-related dangers.” The majority held that the challengers to the ETS are likely to succeed on the merits of their claim that OSHA lacked the authority to issue the mandate. So the court imposed a stay until the challenge is resolved by the Sixth Circuit Court of Appeals.

Three of the conservative Justices (Gorsuch, Thomas, and Alito) wrote a concurrence stating that they would also invalidate the rule based on (1) the nondelegation doctrine—a constitutional legal principle that Congress cannot “intentionally delegat[e] its legislative powers to unelected officials” (i.e., OSHA); as well as (2) the major questions doctrine—a constitutional legal principle that Congress needed to “speak clearly” when assigning executive agencies like OSHA with authority over matters of “vast economic and political significance.” The concurrence’s opinion can best be summarized by the following line from its closing paragraph:

"The question before us is not how to respond to the pandemic, but who holds the power to do so. The answer is clear . . . that power rests with the States and Congress, not OSHA."

The Dissent

The court’s three liberal justices dissented, noting that the grave danger posed to citizens by COVID-19 justified OSHA taking action to ensure health and safety in the workplace. The dissent further stated that the court had “badly” erred in issuing the stay and asserting that the OSHA standard would have saved “over 6,500 lives and prevent[ed] over 250,000 hospitalizations,” citing OSHA’s own fact-finding on the issue.