On Jan. 13, 2022, the United States Supreme Court struck down the Biden administration’s vaccine-or-test requirement for employers with 100 or more employees.
OSHA vaccine rule
The decision pertained to a vaccine rule enacted in November 2021 by the Occupational Safety and Health Administration (OSHA). By way of background, OSHA is responsible for ensuring workplace safety by enforcing occupational safety and health standards. Typically, the development of OSHA standards must include time periods for the agency to provide notice and invite public comment. OSHA may, however, issue emergency temporary standards (ETS) in certain circumstances that requires no such notice-and-comment procedures.
In November, OSHA announced an ETS to curb the spread of the COVID-19 pandemic. The rule, which applied to employers of 100 or more employees, mandated that employers require employees to be vaccinated or, alternatively, have weekly COVID-19 tests. Employers were required to, among other things, verify the vaccination status of each employee and maintain related records.
Vaccine rule blocked
After the ETS was challenged in various courts of appeals across the country, the case ultimately rose to the Supreme Court. The Supreme Court issued a stay on the vaccine rule. Although OSHA now has the right to continue to fight for the rule in the Sixth Circuit Court of Appeals, it seems doing so would be fruitless. For all intents and purposes, the OSHA ETS is dead.
In issuing a stay, the Supreme Court held that OSHA lacked authority to impose the mandate. The Supreme Court reasoned that requiring employees to obtain a COVID-19 vaccine or undergo weekly testing was a “significant encroachment” into the lives of employees. It further reasoned that OSHA is responsible for setting workplace safety standards, not public health measures. Because employees can contract COVID-19 outside of work as opposed to solely in the workplace, the Supreme Court held that OSHA was not permitted to implement the rule. It compared the risk of contracting COVID-19 to the “day-to-day dangers” employees face from air pollution.
Finally, the Supreme Court stated that OSHA could, in theory, regulate occupation-specific risks related to COVID-19. For example, OSHA could regulate researchers who work with the COVID-19 virus or regulate risks associated with crowded work environments. Of course, whether the Supreme Court would actually permit such regulations, if challenged, is a different issue.
In a separate decision, the Supreme Court upheld a separate rule requiring that healthcare workers who work in facilities funded by the Centers for Medicare and Medicaid Services must be vaccinated, subject to exemptions based on religious or medical reasons.
The Supreme Court’s decision struck a major blow to OSHA efforts to regulate COVID-19 exposure in the workplace. Although President Biden has advocated that employers issue vaccine mandates on their own accord in the wake of the ruling, many employers will not do so. In the absence of a federal OSHA mandate for vaccination or testing, employers might run afoul of the laws in some states that prohibit a vaccine rule. Some employers are concerned that a vaccine mandate not required by law will have a negative impact on retention and recruiting.
For now, employers are well advised to keep a close ear on continuing vaccine rule developments at the state and federal levels. We will keep you apprised of further developments related to the government efforts to mitigate the spread of COVID-19 in the workplace.