On January 13, 2022, the Supreme Court issued a highly anticipated decision blocking OSHA's emergency temporary standard (ETS), which required employers with 100 or more employees to implement a COVID-19 vaccination or weekly testing policy, in addition to other requirements.
Employers were required to comply with most provisions by January 10, 2022; employers had to comply with the testing requirement by February 9, 2022. In a 6-3 decision, the Court blocked the ETS. The Court could theoretically revisit its decision to block the ETS after the Sixth Circuit issues a subsequent decision on the legal challenges to the ETS. However, the basis for the Court’s decision — that the Secretary of Labor lacked authority to issue the vaccine-or-test mandate — is unlikely to change. Therefore, even if the Court has further occasion to consider the legality of the ETS, its decision strongly indicates that it would be unlikely to reach a different outcome.
The court ruled 5-4 to keep the health care worker mandate, with Chief Justice Roberts and Justice Brett Kavanaugh joining the more liberal Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan.
The Biden administration has argued that both policies are necessary in order to get as many people vaccinated against COVID-19 as possible. President Biden has indicated he is running out of patience with Americans who refuse to get vaccinated against the coronavirus and that the rules were meant to force the issue in order to make workplaces safer.
The employer policy would have required companies with at least 100 workers to mandate all employees be vaccinated or provide weekly negative coronavirus test results and wear face coverings to work on-site.
The White House said the order covered about 17 million health care workers, while the requirement on large companies would have covered more than 80 million employees, about two-thirds of the American workforce.
Read more about the ETS here.
Statement from Secretary of Labor Marty Walsh
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.”
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