The U.S. Supreme Court ruled today that OSHA probably did not have the authority to issue the Emergency Temporary Standard (ETS) that requires vaccination or testing for all employers with 100 or more employees and has stayed (stopped) OSHA from enforcing it. To summarize, the Supreme Court’s reasoning was that OSHA can set workplace safety standards, but not require broad public health measures. The Supreme Court added that OSHA does have the authority to regulate occupation-specific risks related to COVID–19, such as “researchers who work with the COVID–19 virus” and “risks associated with working in particularly crowded or cramped environments” where the danger of becoming infected with COVID-19 is greater than “the everyday risk of contracting COVID–19 that all face.” The Supreme Court case is not over yet, but the Court’s opinion means that it is unlikely the Court will ultimately uphold the ETS.
The Supreme Court’s decision does not prevent employers from adopting their own vaccination requirements, nor does it stop state or local governments from adopting them. It also does not prevent OSHA from developing regulations that are tailored to workplaces where workers have a higher risk of contracting COVID-19 than the general population.
The Supreme Court’s willingness to allow vaccination requirements in situations where employees are likely to be exposed to COVID-19 was demonstrated by another case it decided today, permitting the Secretary of Health and Human Services to require vaccinations for employees who work in facilities that receive Medicare and Medicaid funding (with exceptions for medical and religious beliefs and workers who telework full time).
If you wish to read the Supreme Court’s opinions, here are the links:
- https://www.supremecourt.gov/opinions/21pdf/21a244_hgci.pdf (National Federation of Independent Business v. OSHA, the ETS decision)
- https://www.supremecourt.gov/opinions/21pdf/21a240_d18e.pdf (Biden v. Missouri, the Medicare and Medicaid decision)
If you have fewer than 100 employees and don’t receive Medicare or Medicaid funding, then these opinions do not apply to your workplace.
If you have any questions, please feel free to contact Karen Sutherland.
This article is not legal advice and should not be relied on for any purpose because it is a broad overview of a complex topic, and the guidance from the various governing bodies keeps changing.
