Jan 14, 2022
OSHA’s COVID-19 Vaccination and Testing ETS Stayed by SCOTUS
On Thursday, January 13, 2022, the Supreme Court of the United States stayed the Occupational Safety and Health Administration’s (OSHA) COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS). The Court remanded the case to the Sixth Circuit Court of Appeals, which will consider the merits of the case.
The Court’s Decision
The issue before the Court was whether the Sixth Circuit Court’s decision to dissolve a stay and allow the ETS to go into effect should be overturned. In a per curiam decision, the Court disagreed with the Sixth Circuit and imposed a stay. The Court began by discussing the unprecedented nature of the ETS. OSHA rarely issued emergency temporary standards, and, when it did, federal courts seldom upheld them. The Court was awed by the breadth of the ETS. While it did contain exemptions, the Court commented that the exemptions were “largely illusory,” such as the one for “exclusively outdoor” work. The “regulation otherwise operates as a blunt instrument,” the Court wrote, and “draws no distinctions based on industry or risk of exposure to COVID-19. Thus, most lifeguards and linemen face the same regulations as do medics and meatpackers.”
At least in part because of its broad scope, the Court found that OSHA did not have the authority to promulgate the ETS. The Occupational Safety and Health (OSH) Act “empowers OSHA to set workplace safety standards, not broad public health measures.” (Emphasis in original.) The issuance of the ETS is not an “everyday exercise of federal power,” but rather a “significant encroachment into the lives – and health – of a vast number of employees.”
Although 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. 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.
The Court found that had OSHA been more deliberate and focused about the employers covered by the ETS, it might have survived judicial scrutiny. “Where the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are plainly permissible,” and OSHA could “regulate researchers who work with the COVID–19 virus” or “regulate risks associated with working in particularly crowded or cramped environments.” But an occupational safety and health standard that applies to every workplace with 100 or more employees—without regard to the actual conditions in those workplaces—is too broad. “OSHA’s indiscriminate approach fails to account for this crucial distinction—between occupational risk and risk more generally—and accordingly the mandate takes on the character of a general public health measure, rather than an “occupational safety or health standard.”
Citing to a recent decision, the Court wrote it expects Congress to “speak clearly when authorizing an agency to exercise powers of vast economic and political significance.” The ETS is undisputedly an exercise of such power, and the Court held the OSH Act did not plainly authorize the ETS. (“Congress does not hide elephants in mouseholes” is a common refrain in Supreme Court administrative rulemaking law.) Because ETS attempts to address a public health measure, and not set an occupational safety and health standard, OSHA exceeded its authority under the OSH Act. The Court granted the applicants’ requests for emergency stay and remanded the case to the Sixth Circuit for disposition of the challengers’ petitions for review.
Justice Gorsuch authored a concurring opinion that justices Thomas and Alito joined. The concurrence discusses the major questions doctrine in more detail and concludes that Congress did not authorize OSHA to “regulate not just what happens inside the workplace but induce individuals to undertake a medical procedure that affects their lives outside the workplace.” Without express congressional approval, OSHA lacked the authority to implement the ETS.
Justices Breyer, Sotomayor, and Kagan dissented. The dissent chides the majority for constant reference to the ETS as a vaccine “mandate” when it permitted a testing option and found that OSHA clearly had the authority to issue the ETS.
What Happens Now?
The case has been remanded to the Sixth Circuit Court of Appeals to make a determination regarding whether OSHA has the authority to promulgate the ETS. In staying the ETS, a majority of the Supreme Court found that the plaintiffs in the case are likely to be successful on the merits. Although that finding is not binding on the Sixth Circuit, it is likely to influence the Sixth Circuit’s decision. As important, the ETS expires six months after issuance—or on May 5, 2022. Depending on the briefing and argument schedule, the Sixth Circuit may not issue a decision before the ETS expires.
What Are OSHA’s Options?
OSHA may impose COVID-19 requirements on employers using the so-called General Duty Clause provision in the OSH Act. That provision requires employers to maintain a workplace “free from recognized hazards.” The elements OSHA must prove to show a General Duty Clause violation make this a challenge. With regard to COVID-19, OSHA must show that an actual COVID-19 hazard existed in the workplace—it is not enough to show that an employee could have had COVID-19 at work and transmitted it to other workers. OSHA must also show that the steps it requires employers to take to mitigate COVID-19—such as testing, masking and vaccination—are technologically and economically feasible. For these reasons, OSHA has issued few General Duty Clause violations related to COVID-19.
OSHA is accepting comments on the ETS until January 19, 2022. Comments were solicited by OSHA because the agency is considering whether to issue a COVID-19 standard using its non-emergency regulatory authority. The Supreme Court majority noted that OSHA could issue a narrower standard based upon heightened risk in certain types of workplaces, and OSHA could choose to do just that.
What Does This Mean for Employers?
The Supreme Court decision leaves states free to regulate employers with regard to COVID-19. Twenty-two states have their own federally-approved OSHA plans. Federal OSHA has no jurisdiction over private employers in those states with approved plans. State OSHA plans may adopt occupational safety and health standards as long as they are “at least as effective” as federal OSHA standards. Given the stay, OSHA does not currently have a COVID-19 standard in place, leaving state OSHA plans to adopt standards (or decline to do so) that are the same as the ETS or less protective. For example, a state OSHA plan could adopt a standard that requires vaccination or masking but does not include weekly COVID-19 testing. Some state OSHA plans, including California, Virginia, Washington, and Oregon, have already adopted COVID-19 standards. Other states OSHA plans like Iowa’s—a state that was a plaintiff in the challenge to the ETS—have expressly declined to do so.
The ETS also loses its preemptive effect in states without federally-approved state OSHA plans. For example, Texas Governor Greg Abbott issued an executive order prohibiting vaccine mandates. If it were in effect, the ETS would preempt this type of state law because it frustrates the overall regulatory scheme OSHA tried to impose by foreclosing employers from adopting one of the options in the ETS—vaccine mandates. Without the ETS, Texas and other states are free to regulate or legislate COVID-19 as they see fit.