On January 13, 2022, in a 5-3 opinion, the U.S. Supreme Court stayed the Occupational Safety & Health Administration’s (“OSHA”) Emergency Temporary Standard (the “ETS”) which requires employers with over 100 employees to implement a mandatory vaccination policy or require weekly testing of unvaccinated employees. Justices Gorsuch, Thomas, and Alito concurred, and Justices Breyer, Sotomayor, and Kagan dissented.

The majority held that the ETS’s challengers were likely to prevail on their claim that OSHA lacked authority to issue this mandate and that, consequently, the ETS should be stayed until the Sixth Circuit rules on the validity of the ETS. Specifically, the majority held that: 

• To impose the stay, the ETS’s challengers had to show they were likely to succeed on the merits of their claim that OSHA lacked authority to impose the ETS and that equity justified interim relief until the ultimate validity of the ETS could be decided. 

• The issue was whether the Occupational Health and Safety Act (the “Act”), and thereby Congress, plainly authorized the ETS. The majority held it does not.

• Under the Act, OSHA may impose an emergency temporary standard only where (1) “employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards” and (2) the standard is “necessary to protect employees from such grave danger.”

• The Act empowers OSHA to regulate work-related dangers, not public health emergencies. Since COVID-19 can spread anywhere people gather, it is a general hazard, not an occupational hazard. 

• According to the Court, while OSHA may have the authority to regulate occupation-specific risk related to COVID-19, the ETS’s breadth—applying to all employers with over 100 employees (approximately 84 million employees)—makes it more like a public health standard than an occupational standard.

• The fact that the Senate voted to disapprove of the ETS, coupled with the ETS’s unprecedented nature, were also telling signs that the ETS went beyond Congress’s authorization.

• And finally, the ETS’s benefits do not clearly outweigh the hardships faced by States and employers in implementing the ETS. 

• The Court therefore held that the ETS’s challengers had satisfied their burden and granted the stay. 

For now, employers do not have to comply with the ETS’s requirements. However, employers should continue monitoring this topic since the question of the whether the ETS is valid has yet to be decided. 

This article is for informational purposes only and should not be considered legal advice. Please consult with your legal counsel regarding any specific situation, particularly given that this is a rapidly developing area of the law.

Written by Jordan Brownlow and Christie Newkirk from Carrington, Coleman, Sloman & Blumenthal, L.L.P.