Today, the U.S. Supreme Court put the brakes on OSHA’s mandatory vaccination and testing rules for
private employers with at least 100 employees. The Court ruled that OSHA exceeded its authority when issuing its Emergency Temporary Standard (ETS) requiring either mandatory vaccination or weekly testing and face masks. The Court noted that OSHA is charged with regulating hazards in the workplace, not “hazards of daily life.” Because COVID-19 can and does spread outside of the workplace, according to the Court, the risk OSHA seeks to mitigate cannot be considered an occupational hazard.
So that is it, right? The ETS is now officially dead … right? Technically, no. The Supreme Court Order is simply a stay of the Sixth Circuit’s December 17th Order allowing the ETS to go into effect. However, as a practical matter, it probably is “finito.” When the highest court in the land says that OSHA exceeded its authority, good luck to the ETS surviving any further legal challenges. To do so, OSHA would need to significantly revise the ETS.
However, this decision by the Court does not mean that employers are prohibited from requiring employees to submit to weekly Covid testing or wearing masks at work. Each employer can implement its own plan for stopping the spread of Covid in the workplace so long as the plan does not otherwise violate existing state or local law. Today’s ruling only means that, for now, OSHA cannot require larger employers to comply with its ETS.
In other news, there is one other mandatory vaccination rule that did get the green light. The Department of Health and Human Services had announced a similar rule requiring mandatory vaccination of employees of health care facilities receiving Medicare and Medicaid funding. In a separate order, the Supreme Court held that the mandatory vaccination rule in this context was within the authority of the Department as “ensuring that providers take steps to avoid transmitting a dangerous virus to their patients is consistent with the fundamental principle of the medical profession: first, do no harm. It would be the ‘very opposite of efficient and effective administration for a facility that is supposed to make people well to make them sick with COVID-19.’”