On Jan. 13, the Supreme Court of the United States stayed OSHA’s Emergency Temporary Standard (ETS) requiring employers with 100 or more employees to implement a mandatory vaccination policy for their employees or have unvaccinated employees submit to weekly COVID-19 testing and wear a mask at work. The ETS went into effect on Jan. 10, 2022, but the ruling immediately stops enforcement of the ETS.
On Nov. 4, 2021, following direction by the Biden Administration, OSHA issued an ETS requiring employers with 100 or more employees to implement a mandatory vaccination policy for their employees or have unvaccinated employees submit to weekly COVID-19 testing and wear a mask at work. The ETS was immediately challenged in federal courts by various employers, business interest groups, and states. The federal Fifth Circuit Court of Appeals stayed enforcement of the ETS citing “grave statutory and constitutional issues.”
Following multiple challenges in various federal courts across the entire country, the challenges were consolidated through a procedural move into the federal Sixth Circuit Court of Appeals. The consolidation put all of the challenges to the ETS into one challenge before the Sixth Circuit. On Dec. 17, 2021, the Sixth Circuit dissolved the stay by the Fifth Circuit and allowed the ETS to go into effect. The decision was immediately appealed to the Supreme Court, asking the court to once again halt enforcement of the ETS.
In the wake of the Sixth Circuit’s decision, OSHA released a statement delaying the original enforcement dates of the mandate. OSHA stated that it “will not issue citations for noncompliance with any requirements of the ETS before Jan. 10 and will not issue citations for noncompliance with the standard’s testing requirements before Feb. 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.” On Jan. 10, 2022, the ETS went into effect.
Supreme Court halts enforcement of mandate
Following oral arguments, and three days after the ETS went into effect, the Supreme Court stayed enforcement of the ETS. The Supreme Court held that the stay was appropriate because those challenging the ETS were likely to succeed on their claim that the secretary of labor lacked authority to impose the mandate. The Supreme Court found that while OSHA has the authority to regulate workplace health and safety, COVID-19 extends well beyond the workplace. “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 expand OSHA’s regulatory authority without clear congressional authorization.”
This ruling means that OSHA cannot enforce the ETS, and employers need not comply. Because the ETS came to the Supreme Court on an emergency appeal to stay the mandate and not on a merits-based appeal, the case will now go back to the Sixth Circuit for a ruling on the legal merits of the case. The Sixth Circuit will have to determine if the secretary of labor lacked authority to impose the mandate. Given the Supreme Court’s guidance on the issue through this opinion, however, it is likely the Sixth Circuit will agree with the Supreme Court and the pending ETS will not take effect.
The Supreme Court’s decision to halt enforcement of the ETS is both a win for employers and for the Constitution. Employers need not worry about this ETS for the time being. Compliance is not required, and it is unlikely that compliance with this ETS will be required when the Sixth Circuit issues its ruling on the legal merits of the case. It is anticipated that it will be a number of months before the Sixth Circuit issues this ruling. Employers must still be cognizant of applicable state and local mandates that are in effect around the country and could be coming following this decision.
R. Eddie Wayland is a partner with the law firm of King & Ballow. You may reach Mr. Wayland at (615) 726-5430 or at [email protected] The foregoing materials, discussion and comments have been abridged from laws, court decisions, and administrative rulings and should not be construed as legal advice on specific situations or subjects.