U.S. Supreme Court Grants Temporary Stay to OSHA’s ETS Vaccine Mandate – So What Do Covered Employers Do Now?


James P. Reidy, Esq. | January 14, 2022

By now, even if you aren’t a regular court watcher or have been otherwise glued to the SCOTUS website waiting for the High Court to rule on the challenges to the U.S. Department of Labor’s Occupational Health and Safety Administration’s (“OSHA”) vaccine mandate, you likely have heard that the Supreme Court, in a 6-3 decision issued on January 13th, struck down the OSHA Emergency Temporary Standards (“ETS”). This particular ETS required covered large employers, meaning those with 100 or more employees, to create a policy either having all employees vaccinate or having all non-remote employees produce a weekly negative COVID test to come to work. Exemptions were of course available for employees with medical and religious objections. Failure to comply with the ETS would have exposed employers to serious fines from OSHA. Covered employers across the country had serious concerns about the costs and impact of compliance, but over the last few months, many took steps to comply or prepare to comply with the ETS requirements. The Court’s decision has left many of those same employers relieved but also wondering what to do next as COVID infections continue to rise.

The ETS was drafted by OSHA in response to an Executive Order from the Administration as a part of the President’s Path Out of the Pandemic Plan announced on September 9, 2021. The ETS was issued on November 5, 2021. It was met with an immediate legal challenge and the U.S. Court of Appeals for the 5th Circuit issued a preliminary injunction followed by a permanent injunction blocking OSHA’s enforcement of the ETS. The 6th Circuit next took up the case and, in a separate review, lifted the nationwide injunction thereby permitting OSHA to proceed with its enforcement of the ETS. The 6th Circuit’s decision was immediately appealed to the Supreme Court.

The Supreme Court ruled that OSHA had exceeded its statutory authority by adopting a global mandate that applied to all covered employers. Describing the ETS in such terms as a “blunt instrument” or in the words of one Justice, it was the federal government’s attempt to “squeeze an elephant through a mousehole,” the Court’s majority set aside the mandate for now and suggested that would do so again on the merits. The reasoning behind the ruling focused on the powers granted by Congress to the Department of Labor and more particularly OSHA to set workplace safety standards and address workplace hazards distinguished those from the ETS’ much broader reach in addressing the public health hazard presented by the COVID-19 virus. The Court’s majority found that because the virus could be contracted outside of the workplace, OSHA’s ETS was in effect an attempt to regulate the hazards of daily life. That was a bridge to far for the Court and an act not authorized by Congress.

The Court noted that OSHA could still, under its General Duty Clause, address through regulation or specific workplace inspections, known hazards including the spread of the virus in certain workplaces where employers had not taken steps to keep employees safe from unreasonable risk of exposure. It’s just that the ETS was too broad and sweeping as it exceeded the limits of the Agency’s authority as set by Congress. For now, the ETS is stayed again, meaning it is not in effect and OSHA can’t enforce it. The matter is now back to the 6th Circuit to review the case on the merits.

So, what do employers do now? Well, whether covered by the ETS or not, all employers (except those regulated by the CMS mandate and potentially those regulated by the federal contractor mandate, which has also been stayed) are, as they were before the Path Out of the Pandemic Plan Executive orders, free to adopt their own vaccine policies. EEOC guidance provides that employers could adopt a vaccine policy as long as it was job-related and consistent with business necessity. The EEOC also said that employers should allow employees to seek medical or religious exemptions, thus obligating employers to explore reasonable accommodations for those employees. Employers who choose not to implement a vaccine policy should still follow OSHA’s General Duty clause, as well as state and local laws and regulations intended to protect employees from workplace hazards.

The COVID-19 virus has been with us in one form or another for nearly two years. Employers have faced many challenges over that period of time including stay-at-home orders, furloughs, layoffs, remote work accommodations, and complying with various federal and state laws and regulations. There is no doubt that the Path Out of the Pandemic Plan and the ETS were well-intended as they attempted to stop or reduce the spread of the virus. But they ran into real legal and Constitutional roadblocks when they cast such a broad net. For now, employers should reexamine their safety policies and procedures and determine if more needs to be done in their workplace to keep their employees as safe as possible.

Note: The U.S. Supreme Court also addressed the vaccine mandate for Covered healthcare employers by upholding that mandate. We will soon issue another client alert to summarize that ruling and what it means for those covered employers.

Acknowledgment: A special thanks to Attorney Brian Bouchard for his assistance with this Client Alert.