Supreme Court Stays OSHA “Vaccine or Test” Emergency Temporary Standard

Supreme Court Stays OSHA “Vaccine or Test” Emergency Temporary Standard

On January 13, 2022, the Supreme Court stayed the Occupational Safety and Health Administration (OSHA) vaccine-or-test mandate from the November 2021 Emergency Temporary Standard

On January 13, 2022, the Supreme Court stayed the Occupational Safety and Health Administration (OSHA) vaccine-or-test mandate from the November 2021 Emergency Temporary Standard (ETS), finding that the agency had exceeded its authority.

The mandate, discussed in more detail here and here, required that all employers with one hundred or more employees implement policies to ensure that employees were either 1) vaccinated or 2) testing negative at least once a week.   

The Court reasoned:

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 noted, however, that OSHA may be within its authority to regulate workplaces “[w]here the virus poses a special danger because of the particular features of an employee’s job or workplace,” for example, “researchers who work with the COVID-19 virus” or “particularly crowded or cramped environments.”

For now, the mandate is stayed pending the outcome of the legal challenges that will continue in the Sixth Circuit.

What does this mean for employers?

Notwithstanding other legal obligations that may apply, employers who would have been impacted by the ETS are left to make their own decisions with respect to requiring vaccination and/or testing while the Sixth Circuit challenges to the ETS proceed. 

If you have questions, please contact us

For questions about what you as an employer may be required to do with respect to COVID-19, contact a member of the Scarinci Hollenbeck Labor & Employment practice group at 201-896-4100. 

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AboutCaitlin P. Dettmer

Caitlin P. Dettmer works with private and public sector clients on both state and federal labor and employment issues. She also has experience handling intellectual property matters, including trademark registration and infringement issues.Full Biography

AboutLawrence M. Teijido

Lawrence M. Teijido is a member of the firm’s Public & Education law practice group, where he works with public clients on a broad range of civil litigation matters.Full Biography

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Supreme Court Stays OSHA “Vaccine or Test” Emergency Temporary Standard

Supreme Court Stays OSHA “Vaccine or Test” Emergency Temporary Standard
Author: Caitlin P. Dettmer, Lawrence M. Teijido

On January 13, 2022, the Supreme Court stayed the Occupational Safety and Health Administration (OSHA) vaccine-or-test mandate from the November 2021 Emergency Temporary Standard (ETS), finding that the agency had exceeded its authority.

The mandate, discussed in more detail here and here, required that all employers with one hundred or more employees implement policies to ensure that employees were either 1) vaccinated or 2) testing negative at least once a week.   

The Court reasoned:

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 noted, however, that OSHA may be within its authority to regulate workplaces “[w]here the virus poses a special danger because of the particular features of an employee’s job or workplace,” for example, “researchers who work with the COVID-19 virus” or “particularly crowded or cramped environments.”

For now, the mandate is stayed pending the outcome of the legal challenges that will continue in the Sixth Circuit.

What does this mean for employers?

Notwithstanding other legal obligations that may apply, employers who would have been impacted by the ETS are left to make their own decisions with respect to requiring vaccination and/or testing while the Sixth Circuit challenges to the ETS proceed. 

If you have questions, please contact us

For questions about what you as an employer may be required to do with respect to COVID-19, contact a member of the Scarinci Hollenbeck Labor & Employment practice group at 201-896-4100. 

....