Member Article

On Jan. 13, 2022, the United States Supreme Court issued an order blocking enforcement of the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS) requiring (among other things) employers of 100 or more employees to require employees to be vaccinated against COVID-19 or ensure unvaccinated employees are tested for COVID-19 weekly.[1]

The opinion cited the limited scope of OSHA’s statutory authority to regulate “work-related dangers” and found that “[a]lthough COVID–19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases.”[2]

The Court also noted the opinion does not prohibit OSHA from promulgating any regulations related to COVID-19 and opined OSHA could regulate “[w]here the virus poses a special danger because of the particular features of an employee’s job or workplace,” but the broad application of the ETS to all large employers exceeds the agency’s statutory authority. Based on this analysis, the Court found those challenging OSHA’s ETS are likely to succeed on the merits of their claim. Accordingly, the Court stayed enforcement of the OSHA ETS, pending disposition of the petitions for review in the United States Court of Appeals for the Sixth Circuit.

This ruling from the Supreme Court comes on the same day the Court issued an order permitting enforcement of the Centers for Medicare and Medicaid Services’ (CMS) COVID-19 vaccine requirement for health care workers at facilities participating in Medicare and Medicaid programs.[3]

[1] For more information on OSHA’s Emergency Temporary Standard and litigation to date, see our previous alerts available here: https://www.dinsmore.com/publications/osha-publishes-covid-19-vaccine-mandate-for-companies-with-100-or-more-employees/;  https://www.dinsmore.com/publications/osha-suspends-implementation-and-enforcement-of-covid-19-vaccine-and-testing-mandate/ ; https://www.dinsmore.com/publications/osha-covid-19-vaccine-mandate-is-back-following-sixth-circuit-decision/ 

[2] The Supreme Court’s full opinion on the OSHA ETS is available here: https://www.supremecourt.gov/opinions/21pdf/21a244_hgci.pdf

[3] The full order permitting enforcement of the CMS mandate is available here: https://www.supremecourt.gov/opinions/21pdf/21a240_d18e.pdf.