OSHA’s ETS
On November 5, 2021, OSHA issued the ETS (previously summarized by Z&R here), which required private employers with 100 or more employees to mandate either (1) COVID-19 vaccinations or (2) weekly testing and masking requirements for unvaccinated employees. Among other requirements, covered employers had to confirm and keep records of their employees’ vaccination status. OSHA estimated that the mandate would apply to 84.2 million employees.After OSHA issued the ETS, the U.S. Court of Appeals for the Fifth Circuit issued a stay preventing OSHA from enforcing the ETS. Subsequently, legal challenges to the ETS were consolidated and randomly assigned to the U.S. Court of Appeals for the Sixth Circuit for resolution. As discussed here, The Sixth Circuit dissolved the Fifth Circuit’s stay, allowing OSHA to begin enforcing the ETS. Parties challenging the ETS quickly appealed to the U.S. Supreme Court seeking a stay.
In its decision, the Supreme Court held the parties challenging the ETS are likely to ultimately prevail on their arguments that OSHA exceeded its authority and that the ETS is otherwise unlawful. Accordingly, the Supreme Court stayed OSHA’s implementation of the ETS pending ongoing legal proceedings challenging the ETS.
In discussing OSHA’s authority to issue the ETS, the Court called it “a significant encroachment into the lives – and health – of a vast number of employees.” Countering OSHA’s characterization of COVID-19 as a work-related danger, the Court noted “COVID-19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather.” In light of this, the Court stated that “[p]ermitting 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 did state, however, that OSHA has the authority to regulate occupation-specific risks related to COVID-19 and, “[w]here the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are plainly permissible.”
Healthcare Worker Mandate
While the Supreme Court stayed OSHA’s implementation of the ETS, it allowed a separate vaccine mandate that applies to federally-funded healthcare facilities. In that decision, the Court lifted injunctions precluding the implementation of an interim final rule issued by the Secretary of Health and Human Services (“HHS”) requiring staff at facilities that receive federal funding (i.e., Medicare and Medicaid) to be vaccinated against COVID-19, unless exempt for medical or religious reasons. The Court concluded that HHS did not exceed its statutory authority to issue regulations necessary in the interest of the health and safety of patients at participating facilities.Conclusion
For employers covered by OSHA’s ETS, the Supreme Court’s decision is the latest twist in a frustrating legal saga that has created great uncertainty. At least for the time being, covered employers are no longer required to comply with the ETS, including the vaccination or testing and masking mandates, vaccine-status record collecting, and unvaccinated employee testing requirements. However, federally-funded healthcare facilities must comply with HHS’s interim rule requiring vaccination.*Scott Coghlan chairs the firm’s Workers’ Compensation Group and regularly advises clients on all workers’ compensation and OSHA related matters. If you have questions about the Supreme Court’s decision, OSHA’s ETS, or other employment law issues, please contact Scott at sc@zrlaw.com or (216) 696-4441.