SOCMA Blog: Supreme Court Ruling Deals Blow to OSHA ETS on Vaccination and Testing

January 14, 2022 – While we are not at the finish line on OSHA’s Emergency Temporary Standard (ETS) on COVID-19 Vaccination and Testing, the Supreme Court dealt a strong blow against it on Thursday, stating in the decision that the Court believes legal opposition to the ETS is “likely to prevail.”

The Supreme Court decision centers on the definition of “workplace.” The majority opinion clarifies that “[a]lthough COVID–19 is a risk that occurs in many workplaces, it is not an occupational hazard in most.”

The opinion reflects the general thought process of the Supreme Court on the ETS, though the decision is only relevant to the stay; the case on the merits of the ETS is still with the U.S. Court of Appeals for the Sixth Circuit, which will issue its decision soon.

The Sixth Circuit opinion on the merits could be similar to its decision on the stay, which means the court will probably find in favor of OSHA. However, the Supreme Court decision could cast a shadow as the Sixth Circuit proceeds even though briefings and filings are all completed for the Sixth Circuit case. Technically, the Supreme Court decision on the ETS stay is not cited by plaintiffs, but it remains to be seen if it will have an impact on the Sixth Circuit. If the Sixth Circuit finds in favor of OSHA, the plaintiffs will certainly appeal to the Supreme Court, which will probably overturn the decision again.

The Administration, in statements by both President Biden and Secretary of Labor Marty Walsh, has implied that it does not think OSHA can win on the merits and is urging businesses to mandate vaccination and testing. The White House has not suggested, however, that it will retract the ETS, drop its current defense in the Sixth Circuit, or forego an appeal of the Sixth Circuit decision in the Supreme Court.

What will OSHA do next? It’s unlikely there will be a new ETS if this one is struck down. OSHA will likely develop a long-term pandemic/virus/contagion workplace safety rule that will go through the normal rulemaking process. We are probably years away from a proposed rule, five-plus years from a final rule, and six or more years from actual effective dates for the rule. In the short term, OSHA could creatively use existing authority to put additional record-keeping requirements on employers related to vaccinations, of course, without going through a lengthy rulemaking process.

Companies with 100 or more employees should continue to track the issue because each court case changes employer compliance requirements. Specifically, if the Sixth Circuit finds in favor or OSHA, the ETS becomes effective immediately. Then, upon appeal, the Supreme Court would likely grant a new stay of the ETS, but there could be hours, days, or even weeks during which the ETS remains in effect.

Contact Robert F. Helminiak, SOCMA VP, Legal & Government Relations, for more insight and guidance on the OSHA ETS and its current standing:

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