By John Milner
Published in “Marketers Update” of the Official Publication of Mississippi Petroleum Marketers and Convenience Store Association. Spring Issue
As we have reported earlier, on January 13, 2022, the Supreme Court of the United States re-instated a nationwide stay of the Occupational Safety and Health Administration’s (“OSHA”) COVID-19 Vaccination and Testing Emergency Temporary Standard (“ETS”). The Court’s stay of OSHA’s ETS prevented OSHA from enforcing the standard, which officially went into effect on January 10, 2022.
In a per curiam (unanimous agreement) opinion, the Court held that emergency relief from the ETS is warranted because the applicants, including 27 states, are likely to prevail on their argument that OSHA’s ETS exceeds its statutory authority and is unlawful. The Court reasoned that “[a]lthough Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly.” The Court went on to state that “requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category.” The Supreme Court’s stay remained in place pending further litigation and a ruling on the merits of the petitions for review in the United States Court of Appeals for the Sixth Circuit.
As a result of the Supreme Court’s ruling, on January 25, 2022, OSHA announced its withdrawal of the ETS effective as of January 26, 2022. The OSHA announcement did specifically state that “[a]lthough OSHA is withdrawing the vaccination and testing ETS as an enforceable emergency temporary standard, the agency is not withdrawing the ETS as a proposed rule. The agency is prioritizing its resources to focus on finalizing a permanent COVID-19 Healthcare Standard.” This essentially means that OSHA may in the future still pursue some form of rule requiring employers to mandate vaccination or testing, but the process for any such rule will follow the ordinary rulemaking notice-and-comment process, rather than the expedited emergency process that OSHA utilized in implementing the now-withdrawn ETS.
In conclusion, at the present time, petroleum marketers that were to be covered by the ETS no longer need to plan for the possibility of its applicability or enforcement. Of course, appropriate, reasonable COVID-19 workplace infection control and mitigation measures consistent with the “General Duty Clause in the OSHA Act need to be continues. This provision requires that employers provide their employees with a working environment “free from recognized hazards that are causing or are likely to cause death or serious physical harm.”
If you have any questions concerning this article or need any additional information, please contact its author, John Milner, MPMCSA Counsel, at firstname.lastname@example.org or (601)291-4696, or Philip Chamblee, MPMCSA Executive Director, at email@example.com or (601) 353-1624