Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On January 13, 2022, the United States Supreme Court granted emergency relief to stay implementation of the Occupational Health and Safety Administration (OSHA)’s Emergency Temporary Standard (ETS) regarding COVID-19. Under the ETS, as of January 10, 2022, employers with 100 or more employees were required to promulgate COVID-19 policies for their workforce; provide paid time off for receiving a vaccination and/or recovering from side effects; collect information on their workforce’s vaccination status and maintain a “vaccine roster”; and, as of February 9, 2022, require employees entering the workplace to either provide proof of vaccination for COVID-19, or provide weekly negative COVID-19 test results. The Court’s decision puts implementation and enforcement of the rule “on hold” pending further review by the U.S. Court of Appeals for the Sixth Circuit, and, conceivably, a return visit to the Supreme Court itself.
In a 6-3 decision, the Court held that those challenging the ETS (including a coalition of businesses and trade associations, as well as a coalition of states) were likely to succeed on their argument that OSHA lacked the authority to promulgate the ETS. As the Court explained, under the law, OSHA is empowered to “set workplace safety standards, not broad public health measures” (emphasis in original). Continuing, the majority explained that “although COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most” (emphasis in original). Thus, the majority held, allowing OSHA to regulate broadly “the hazards of daily living” would expand OSHA’s authority beyond the bounds Congress set for it. In an unsigned opinion, Chief Justice Roberts and Associate Justices Thomas, Alito, Gorsuch, Kavanaugh, and Coney Barrett found that in light of these facts, enforcement of the ETS should be stayed pending further review in the Sixth Circuit, and, ultimately, if sought, the Supreme Court again.
In a separate concurring opinion, Justice Gorsuch (joined by Justices Thomas and Alito) wrote to express the view that under the “major questions doctrine” – which generally provides that where Congress expects an agency to make a decision of vast economic and political significance, it must clearly indicate its intention to do so – the ETS did not pass muster.
Justices Breyer, Kagan, and Sotomayor dissented from the decision. They concluded that the challengers were not likely to prevail on the merits of their argument, and that OSHA was within its power to issue an emergency standard to prevent workplace harm. The dissenters found that COVID-19 presents a “grave danger” to millions of employees; that the ETS was “necessary” to address these dangers; and that OSHA provided sufficient evidence to support its imposition of the standard.
What’s Next for Employers?
As predicted, the Supreme Court’s decision does not represent the final word on whether OSHA may enforce the ETS. Rather, the Court’s decision merely stays for the time being implementation of the rule, and enforcement of the ETS by the agency. In its ruling, the Court directed the Sixth Circuit to consider the substantive validity of the ETS. Enforcement of the ETS is stayed pending that review, and (potentially) a final review again by the Supreme Court.
As a practical matter, this means that employers that were subject to the ETS now have additional time in which to prepare for compliance, should the rule ultimately be upheld (which, given the reasoning of the majority opinion, appears to be unlikely). It is also possible that in light of the Court’s decision, OSHA may issue a more limited rule, or adopt different requirements by way of a permanent standard in the future.
Many employers may also be subject to COVID-19 vaccination and testing requirements at the state and local levels, which are not affected by today’s decision. Employers are cautioned, therefore, that they are not “out of the woods” just yet, and should consult with counsel to discuss the meaning of the Supreme Court’s ruling in their workplace, as well as what safety practices they should consider in view of the ongoing challenges posed by the COVID-19 pandemic.
Littler’s Workplace Policy Institute, OSHA Practice Group, and COVID-19 Task Force will continue to keep readers apprised of recent developments.