On November 5, 2021, OSHA released the COVID-19 Emergency Temporary Standard (“ETS”) providing that employers with at least 100 employees adopt a vaccination policy requiring employees to be fully vaccinated or submit to weekly testing. On January 13, 2021, in a 6-3 decision, the United States Supreme Court issued a ruling blocking the mandate stating that the Labor Secretary “lacked authority to impose the mandate” and it should have been left up to Congress to decide.

When the ETS was initially instated, the Fifth Circuit issued an order staying OSHA’s mandate on November 6, 2021. However, on December 17, 2021, the Sixth Circuit granted the Government’s motion to lift the stay on the OSHA COVID-19 mandate imposed by the Fifth Circuit.

Following the Sixth Circuit decision, multiple parties, including 27 states, filed emergency motions with the Supreme Court to block the enforcement of the ETS. On January 7, 2021, the Supreme Court heard oral arguments from petitioners and OSHA just three days before OSHA was to begin enforcement efforts.

During oral arguments, state governments and businesses asked the Court to issue a stay of the ETS. Both the States and the business associations argued that the ETS was not narrowly tailored, as it was broadly targeted to indoor gatherings.  OSHA responded that it had identified a baseline risk presented by all workplaces with 100 or more employees, and that the challengers had not met their burden in trying to overturn the finding of the Sixth Circuit.

Liberal Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor stressed that the government was addressing an unprecedented public health emergency that is causing thousands of new cases and hospitalizations. They claimed that staying the mandate would cost lives. However, the conservative justices questioned the limits of the authority that Congress had delegated to the federal agencies.

The Supreme Court’s opinion states, “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.”

Although the ETS has been blocked, the lower courts will now decide whether it will be permanently upheld or struck down. As such, employers should remain abreast of these matters as they may eventually impact workplace protocols.