OSHA's vax/test mandate halted by Supreme Court

Thursday afternoon, the U.S. Supreme Court released an opinion indicating that larger employers need no longer comply with the OSHA emergency temporary standard (ETS) requiring that employees either 1) get vaccinated or 2) mask and test weekly. The 6-3 ruling indicated that the rule, was no “everyday exercise of federal power,” and that the OSH Act did not authorize the mandate, as it was more of a public health measure; that COVID-19 is not an occupational hazard in most workplaces.

“Permitting OSHA to regulate the hazards of daily life — simply because most Americans have jobs and face those same risks while on the clock — would significantly ex¬pand OSHA’s regulatory authority without clear congres¬sional authorization.” The ruling went on to say that OSHA doesn’t lack authority to regulate occu¬pation-specific risks related to COVID–19. Where the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are plainly permissible. OSHA could, for example, regulate researchers who work with the virus, or regulate risks associ¬ated with working in particularly crowded or cramped en¬vironments.

Employers had argued that the man¬date would force them to incur billions of dollars in unrecov¬erable compliance costs and cause hundreds of thou¬sands of employees to leave their jobs, and OSHA argued that it would save over 6,500 lives and prevent hundreds of thousands of hospitalizations. The Supreme Court, however, said their role was not to weigh such tradeoffs.

If such a mandate were to be proposed, it would need to come from the states and Congress.

Dissenters pointed to the large number of people the virus has killed and hospitalized, making it a grave danger. In workplaces, more than anywhere else, individuals have little control over the unparalleled risk.

While the ETS is currently stayed, OSHA could appeal to the 6th Circuit for a hearing on the merits. It could also rework the rule and resubmit it.

Employers may, however, still have vaccine mandates, with consideration to employees who request medical or religious accommodations.

In related news, the injunction against the vaccine mandate for health care facilities that receive Medicare and Medicaid funding, however, was lifted. Those employers will need to comply with that mandate.