Alert: OSHA ETS Blocked by U.S. Supreme Court

After much anticipation, the U.S. Supreme Court has stayed OSHA’s Emergency Temporary Standard mandating vaccination or testing of workforces of employer’s with over 100 employees (“ETS”). In so ruling, the Court stated that the National Federation of Independent Business and other applicants (the “Applicants”) were likely to prevail in their arguments that OSHA’s ETS “exceeds its statutory authority and is otherwise unlawful.”

The Court recognized that Congress had given OSHA the power to regulate occupational dangers, but not 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 [regulates public health].”

As expected, the Court was divided. Justices Breyer, Sotomayor and Kagan joined in dissent finding that the Court was telling “the agency charged with protecting worker safety that it may not do so in all the workplaces needed.” The dissent went so far as to state that the Court “without legal basis” usurped a decision that belonged to others.

President Biden immediately issued a statement calling on individual states and private employers to “protect Americans’ health and economy.”

With the ruling by the Court, as stated above, the OSHA ETS has been stayed. The stay will allow the matter to proceed in the Sixth Circuit for a ruling on petitions presented by both sides.

As previously mentioned, CAL OSHA was set to vote on January 20, 2022, regarding the OSHA ETS. Given this ruling, that vote is no longer expected to take place.

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