By: Claire Williams and Chris Fontan
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 prevents OSHA from enforcing the standard, which officially went into effect on January 10, 2022.
In a per curiam 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.”
Justice Gorsuch authored a concurring opinion, which was joined by Justices Thomas, and Alito. Justices Breyer, Sotomayor and Kagan dissented.
The Supreme Court’s stay remains 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. However, given the limited shelf-life of the ETS itself and the language used by the majority of the Justices, many feel that the Supreme Court’s decision on the stay ultimately seals the fate of the ETS. We are monitoring these events and will update you accordingly. In the meantime, feel free to contact any member of Brunini’s Labor & Employment Practice Group if you wish to discuss.