The Supreme Court conservative majority held ranks to temporarily stay an OSHA standard that would have made large employers require their employees get vaccinated or wear a mask and test regularly. In a separate 5-4 decision, the court allowed a similar measure to proceed for workers in the healthcare sector. Employment experts weigh in on implications for businesses.
While the policy has been up in the air since it was introduced in November, some believe this to be the de facto final say on vaccine-or-test mandates for large businesses. But other circuits continue to consider the issue. OSHA may come up with new standards. State governments, meanwhile, have leeway to put their own measures in place. CCI asked three experts in employment law to comment on the stay and what it means for employers.
Background on OSHA’s Vaccine-or-Test ETS
The Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS) on November 4 forcing businesses with 100 employees or more to require their workforces to either get vaccinated or wear masks and test weekly. The Fifth Circuit Court of Appeals placed a temporary stay on the ETS the following day. That temporary stay was extended, and challenges to the standard began to proceed through several levels of the judiciary system.
While the Fifth Circuit has blocked the OSHA vaccinate-or-test mandate ETS, other courts continue to determine its constitutionality. Insights from Caleena S. Braig of @MoyeWhite #VaccineMandate #OSHA https://t.co/S2gjvxDXU6
— Corporate Compliance Insights (@cci_compliance) November 18, 2021
Caleena Braig, partner at law firm Moye White:
Notably, in granting the stay, the U.S. Supreme Court held in a 6-3 decision that the challenge to the ETS is likely to succeed on the merits because OSHA lacked the authority to issue the ETS mandate. The court explained that OSHA is allowed to “set workplace safety standards, not broad public health measures.” Because the risk of contracting COVID-19 is not only in the workplace but also in many other public settings, COVID-19 “is not an occupational hazard.” Thus, the court held that allowing OSHA to broadly regulate “the hazards of daily living” would expand OSHA’s authority beyond what Congress allows.
While likely indicative of what may come, the Supreme Court’s decision is not the final say. Instead, the court directed the Sixth Circuit to consider the substantive validity of the ETS. But, with the stay in place, employers have additional time to prepare for compliance should courts uphold the ETS, which appears unlikely. Because of the court’s decision, OSHA may issue a new or limited ETS on the subject matter.
Further, the court’s decision does not affect state and local COVID-19 vaccination and testing requirements. Employers are not in the clear yet and should continue to monitor updates until there is a final resolution on this matter. Companies need to continue to comply with all local and state regulations regarding COVID-19 testing, vaccine protocols and sick leave. Leaders should have plans in place in the off chance the ETS is actually passed to ensure they don’t fall victim to violations.
Zachary Busey, shareholder in Baker Donelson’s Labor & Employment Group:
OSHA’s ‘Vaccine or Test’ (Emergency Temporary Standard) was once again stayed by the Supreme Court, and it is a nationwide stay. The stay will remain in place until the final disposition of all litigation. As a result, although the Sixth Circuit might issue additional rulings or decisions regarding the ETS – and, perhaps, even rule in favor of it – this will not impact the Supreme Court’s stay. The Supreme Court’s stay, as a practical matter, will remain in effect longer than the ETS, which expires in May 2022. The Supreme Court, in all, has (effectively) struck down the ETS.
Carrie Urrutia, member in Eastman & Smith’s Labor & Employment practice:
OSHA’s ETS has been stayed by the U.S. Supreme Court in an opinion that makes clear the ETS will not be reinstated by a lower court. The Supreme Court concluded, in a 6-3 decision, that Congress never granted to OSHA the power to regulate public health dangers; it only has the power to regulate occupational health dangers.
The court’s opinion does not infringe upon a private employer’s ability to impose COVID-related rules (i.e., masking, vaccination, testing, etc.) and many employers may elect to continue mandating enhanced safety requirements – including requiring vaccinations – given the recent spike in COVID-19 cases in most areas. The obligations imposed by OSHA’s ETS, however, are no longer in place, which will be a relief to many employers who were legitimately concerned about employees quitting in an already difficult labor market.
Notwithstanding the Supreme Court’s decision, employers should keep in mind that OSHA still has the power to regulate, through its General Duty Clause, safety in the workplace. For those workplaces where circumstances create a unique risk of contracting COVID-19, employers remain obligated to take such actions as are reasonable and appropriate to protect workers. Further, individual states also have the power to address the public health issues presented by COVID-19. Finally, employers should be mindful that their customers may also make demands on the employer’s work environment and its employees. The Supreme Court’s decision has not eliminated the myriad practical issues facing employers across the country that are trying to remain productive and profitable while also keeping their employees safe.
Henry Kronk is the former Managing Editor of Corporate Compliance Insights. His previous reporting has appeared in Exclaim!, the Burlington Free Press, International DJ, eLearning Inside and more. He produced the radio show Code Burst — an investigation into a coding bootcamp that sought to retrain out-of-work coal miners for jobs in tech — for CKUT 90.3 FM in Montreal. 
