We previously blogged about the issuance of an emergency temporary standard (ETS) by the Occupational Safety and Health Administration (OSHA) obligating large employers to require their employees to become vaccinated against COVID-19 or submit to weekly testing for the disease. Since the ETS was published in November 2021, lawsuits challenging the mandate have proceeded on a tortured procedural path through our federal courts. At one point, the Fifth Circuit Court of Appeals stayed the ETS from taking effect. Later, after the various cases were consolidated before the Sixth Circuit, the stay was vacated and the Biden administration told employers it was full steam ahead. The majority of the ETS’ provisions took effect on January 10, 2022, while the date for compliance with the weekly testing requirement was scheduled to take effect in February.

Supreme Court Ruling

Most recently, the ETS’ challengers applied to the United States Supreme Court (SCOTUS) for an order barring the ETS from taking effect while the lower courts consider whether OSHA exceeded its authority in issuing the rule. This application for emergency relief–which appeared on what some call the court’s “shadow docket”– was orally argued (and broadcast online) before SCOTUS on January 7th. Based on comments made by the justices, particularly those by Justice Roberts, many commentators anticipated that the stay would be granted.

Today, those predictions were proven correct when six of the nine justices ruled in favor of staying the ETS from taking effect and/or being enforced. As a practical matter, this means that employers with one hundred or more employees who were preparing to comply (or already started doing so) are no longer required to do so for the time being. Of course, this does not change anything for companies that are subject to state or local mandatory vaccination requirements.

Future of the ETS

Many employers are wondering whether the stay will ultimately be lifted and it will become necessary to comply with the ETS. Based on SCOTUS’ ruling, it is unlikely that the ETS, in its current form, will ever take effect.

Although the distinction may not matter to some, the reality is that SCOTUS did not permanently strike down the ETS. It stopped the ETS from taking effect while leaving it to the trial courts to decide whether the ETS should be upheld at the end of the day. However, SCOTUS’ decision foreshadows how the court would view the underlying question of the ETS’ validity if it ever came before the justices on an appeal. That is because one of the primary considerations in whether to grant a stay is whether the party seeking the stay is “likely to succeed on the merits” of the underlying lawsuit.

The majority of the justices agreed that OSHA does not have the authority to issue a sweeping mandate like the ETS, which would have covered approximately 84 million people and regulated a risk that exists both in and outside of the workplace.  According to the majority opinion, if Congress had intended for OSHA to have such broad powers, the law would have said so clearly, but it does not. Since SCOTUS held, in the context of the stay application, that OSHA does not have the authority to issue such a rule, it is very unlikely that the majority would reach a contrary conclusion on a later appeal.

It remains to be seen whether OSHA will attempt to implement a narrower temporary rule, or individual states will pass legislation imposing obligations similar to those in the ETS. Employers that have taken steps to comply with the ETS can still choose to require vaccination or testing of their employees, so long as they properly entertain requests for reasonable accommodations for medical or religious reasons. Otherwise, employers can shelf their vaccination or testing plans for now–and possibly forever.

If you have any questions about the ETS or mandatory vaccination policies, please contact Jessica Baquet at jbaquet@jaspanllp.com.