This afternoon, approximately one week after holding oral arguments, the United States Supreme Court weighed in on the ongoing legal challenge to the Occupational Safety and Health Administration’s (“OSHA”) controversial COVID-19 Vaccination and Testing Emergency Temporary Standard (“ETS”), which covers nearly all private sector employers with 100 or more employees. The Supreme Court entered a judicial stay, which will bar OSHA from enforcing the ETS until either the Sixth Circuit or the Supreme Court issues a final decision on whether OSHA has the authority to promulgate these guidelines.
As detailed in our earlier November 11 and December 20, 2021 emails, the ETS would require that covered employers implement a written vaccination policy and track their employees’ vaccination status. Employers would have to either opt for a mandatory vaccination policy or require that unvaccinated workers wear face coverings in the workplace and undergo weekly testing.
The Supreme Court’s stay was issued in a 6 to 3 decision, in which Chief Justice Roberts and Associate Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett rejected the notion that Congress had granted OSHA the authority to implement vaccine or test requirements that impact some 84 million Americans at the workplace and in their everyday lives. The majority made its view clear that OSHA’s authority is to set workplace safety standards, not public health measures. The majority opined that COVID-19 is a universal risk and is not an occupational hazard in most workplaces. Finally, the majority stated that a stay is necessary while awaiting the outcome of the legal challenges, because OSHA’s mandate would force employers to incur billions of dollars in unrecoverable compliance costs and could even cause hundreds of thousands of employees to leave their jobs.
With the stay now in place, the litigation will continue in the Sixth Circuit, where all lawsuits challenging the private sector ETS were consolidated back in November, and it may end up at the Supreme Court again.
Employers may still be subject to vaccination and testing requirements imposed by state and local governments, which are unaffected by this decision.
Despite this ruling, the Supreme Court ruled that the United States Department of Health and Human Services' Centers for Medicare & Medicaid Services may continue enforcing a similar standard that governs healthcare workers at hospitals, nursing homes and other facilities that are Medicare/Medicaid-certified healthcare providers.
We will continue to monitor the vaccine mandate litigation as it progresses and keep you updated on all significant developments.
About Paduano & Weintraub LLP
Paduano & Weintraub's Employment Group represents employers in all aspects of employment litigation and counseling. For companies of various sizes, ranging from large public companies to small family-owned businesses, we defend employers nationally, and across various industries, in state and federal actions and arbitrations brought by employees alleging discrimination, harassment and retaliation. We defend employers in single plaintiff and collective and class actions throughout the country alleging violations of the Fair Labor Standards Act and its state and local counterparts. We regularly represent employers in matters regarding restrictive covenants. We counsel clients in risk management by creating proactive solutions to workplace issues. We create and implement compliant and practical policies and best practices to help clients build a workplace infrastructure that balances business needs and legal compliance while mitigating short- and long-term risk. In that regard, we provide effective management-level training seminars and conduct employee harassment training and intervention. Our team responds to and manages the complex issues that arise from workplace crises, including high-profile sexual harassment complaints.