By Jon Taets

ALEXANDRIA, Va.—On Thursday, the United States Supreme Court blocked the U.S. Occupational Safety and Health Administration (OSHA) from enforcing its COVID-19 vaccine-or-testing emergency temporary standard (ETS) for private employers with 100 or more workers. The decision followed the high court’s hearing of arguments January 7 over whether or not to reimpose a lower court’s stay on enforcement. While some observers expected some action from the court prior to OSHA’s January 10 implementation deadline for most of the ETS, the court did not act until January 13. 

“This is an important recognition that the OSHA rule is too broad,” said Doug Kantor, NACS general counsel, following the court’s decision released yesterday afternoon. “Businesses are doing their part to promote vaccination and safety practices. We appreciate the Supreme Court recognizing that OSHA should not push regulatory requirements that cannot be met and will exacerbate the labor shortage,” Kantor said.

In November 2021 when OSHA released the ETS for private employers with 100 or more workers, various groups filed legal challenges to it in every circuit court in the United States. The first court to act was the 5^th Circuit Court of Appeals, which issued a nationwide stay of the ETS, deciding that those challenging the rule were likely to prevail on the merits of the overall challenge.

NACS was an active participant in that case as well. Then in December, the various challenges were consolidated into one circuit, drawn at random as is the federal judiciary’s standard procedure in such cases. After being chosen, a three-judge panel from the 6^th Circuit Court of Appeals voted to dissolve the existing stay of the rule.  It is that decision that the applicants, including NACS, were challenging at the Supreme Court. 

Thursday’s decision is unsigned but includes a separate concurrence agreed to by Justices Alito, Thomas and Gorsuch and a dissent signed by Justices Kagan, Sotomayor and Breyer. In issuing the stay the court wrote:

Applicants are likely to succeed on the merits of their claim that the Secretary lacked authority to impose the mandate. Administrative agencies are creatures of statute. They accordingly possess only the authority that Congress has provided. The Secretary has ordered 84 million Americans to either obtain a COVID–19 vaccine or undergo weekly medical testing at their own expense. This is no “everyday exercise of federal power.” ... It is instead a significant encroachment into the lives—and health—of a vast number of employees. “We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.” … There can be little doubt that OSHA’s mandate qualifies as an exercise of such authority.

Ultimately, the majority of the court decided that the OSHA ETS was too broad to be considered within the agency’s statutory authority. The court determined that OSHA does not have the authority to issue regulations based on general public health emergencies that exist, whether or not employees are at their worksites. The Supreme Court further concurred with the Chief Judge of the 6^th Circuit in his dissent in a related decision who argued that the vaccine “cannot be undone at the end of the workday.”

The court did offer that while this one-size-fits-all rule was beyond the agency’s authority, rules of a smaller scope focused on specific industries that bear a higher risk of transmission of the virus may pass their muster. In fact, Chief Justice Roberts and Justice Kavanaugh joined with the court’s liberal block to uphold a separate Biden Administration rule as it pertains to federally funded health care workers. That decision was also released on Thursday.

In their dissent, the three liberal justices argued that the ETS was squarely within OSHA’s statutory authority because workers have less control over available mitigation measures while at work, thereby increasing the risk of exposure at the workplace. They further argued that OSHA’s assertion that the ETS would prevent 6,500 deaths and prevent hundreds of thousands of hospitalizations during the six months it would be in place greatly outweighed the applicant’s assertions of the economic harm the ETS would inflict. 

The stay will remain in place until the 6^th Circuit dispenses with the full challenge to the ETS which remains before that court. OSHA is now prevented from enforcing the ETS unless the 6^th Circuit finds in its favor. If the 6^th Circuit were to uphold the rule, multiple groups are expected to appeal the decision to the Supreme Court.

Jon Taets is NACS director of government relations. He can be reached at jtaets@convenience.org.