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Prior FOS client alerts have described the federal Occupational Safety and Health Administration’s (OSHA) recent Emergency Temporary Standard (ETS), which mandates vaccination and/or testing for companies with 100 or more employees; the multiple legal challenges to the ETS; and the Sixth Circuit Court of Appeals’ lifting of the stay against the ETS’ enforcement.

Yesterday afternoon, in a six to three decision, the U.S. Supreme Court reinstated the stay against the ETS’ enforcement pending final judicial determination of the ETS’ legality. The Court held that those parties challenging the ETS are likely to prevail in their legal argument that the ETS exceeds OSHA’s authority. The full opinion can be found here.

The Court separately ruled that the Secretary of Health and Human Services did not exceed his statutory authority in requiring that in order to remain eligible for Medicare and Medicaid funding, health care facilities must require that their employees be vaccinated.

The Court held that Congress’ delegation of powers to OSHA did not plainly include the power to create the ETS, which the Court described as relating to public health generally, as opposed to “occupational” hazards faced by employees in the workplace. OSHA has never before issued a standard or regulation of such general, wide-ranging coverage.

COVID-19, the Court stated, is not an “occupational” hazard, even though it occurs in many workplaces. The ETS, the Court continued, addressed the hazards of daily life, including crime, air pollution, or other communicable diseases. Simply put, “imposing a vaccine mandate on 84 million Americans in response to a worldwide pandemic is simply not ‘part of what the agency was built for.’”

The Court acknowledged that OSHA could likely narrowly regulate occupation-specific risks related to COVID–19, where the virus poses a special danger because of the particular features of an employee’s job or workplace, such as researchers working with the virus itself. OSHA could also regulate risks associated with working in particularly crowded or cramped environments. The blanket nature of the ETS, however, was not targeted to a particular occupation or work environment.

The Court finally stated that it is for “the democratic process” (Congress and/or state legislatures), and not the courts, to balance the equities and policies regarding the subject matter of the ETS.

So, what is the practical effect of the opinion for employers and employees?

First, the ETS has no effect, and will have no effect unless and until it is finally judicially determined to be valid. The judicial process will likely take months if the lawsuits challenging the ETS continue.

Second, the ETS is, for all practical purposes, dead in the water. While the Court technically addressed only whether to stay the ETS’s enforcement while the lawsuits against it continue, the Court stayed the ETS precisely because it concluded that the ETS is unlikely to be validated. That conclusion is unlikely to change if and when the issue is again presented to the Court, as will invariably occur if OSHA does not rescind or withdraw the ETS.

Third, the Court has suggested that the issue be dealt with by Congress and state legislatures. Given Congress’ current divide, it seems unlikely to pass vaccine mandate legislation. The same is likely true for Wisconsin given the recent history of the state’s legislature and supreme court as to mask mandates.

Even though vaccine mandates are unlikely to be enacted legislatively or administratively in Congress or the Wisconsin legislature, the opinion does not preclude private employers of any size from imposing their own vaccine/testing requirements on their employees.

FOS is continuing to monitor this litigation and other issues related to the pandemic. FOS’s News and Views contains all the firm’s alerts and other posts regarding the continuing legal impact of COVID-19 and other legal issues. If you have any questions or comments regarding the Supreme Court’s opinion or any other legal issue, contact your FOS attorney.

Be well.