It is finally official. After months of uncertainty, today the Supreme Court blocked the vaccine/testing mandate published back in November by the Occupational Health and Safety Administration (OSHA) to deal with what the agency perceived as workplace dangers caused by the ongoing COVID-19 pandemic.
As a reminder, OSHA issued the nationwide “Emergency Temporary Standard” (ETS) which required employees of large private employers (employers with more than 100 employees) to be vaccinated for COVID or in the alternative submit to regular COVID testing.
In its decision, the Supreme Court essentially held that OSHA is not allowed to make such a mandate, even as an ETS, because the vaccine/testing mandate was effectively a public health measure which exceeded the agency’s authority to regulate safety in the workplace. The Court stated:
“Although COVID– 19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases. Permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization….
Although 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. 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.”
Importantly, the Court did not say that OSHA lacked authority to make any kind of regulation concerning COVID-19. To the contrary, the Court acknowledged that OSHA likely did have the authority to implement a vaccine/testing mandate, or other protocols in some workplaces. But the Court plainly stated that any such regulations would have to be much narrower in order for the Court to uphold it.
“That is not to say OSHA lacks authority to 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, targeted regulations are plainly permissible. We do not doubt, for example, that OSHA could regulate researchers who work with the COVID–19 virus. So too could OSHA regulate risks associated with working in particularly crowded or cramped environments. But the danger present in such workplaces differs in both degree and kind from the everyday risk of contracting COVID–19 that all face. OSHA’s indiscriminate approach fails to account for this crucial distinction— between occupational risk and risk more generally—and accordingly the mandate takes on the character of a general public health measure, rather than an “occupational safety or health standard.”
What does all this mean for employers? It means that unless they are a health care facility that receives federal funding (the Supreme Court upheld the healthcare worker mandate) they are not federally mandated to develop vaccination policies, monitor vaccination status of their employees, or mandate that their workers be vaccinated or submit to weekly testing. Employers still would have to comply with any state rules regarding COVID testing, masking, vaccines, and testing, if any. Importantly, the Supreme Court historically and during this pandemic has been inclined to uphold such state-made vaccine and testing rules. Employees are also free to implement their own workplace rules regarding COVID, as they see fit.