January 14, 2022

EAA SCOTUS

The long anticipated ruling from the Supreme Court on OSHA’s vaccination and testing ETS finally arrived Thursday. The opinion given by the court wasn’t a simple one either, and there’s still a lot to unpack from it.

So, here is a break down of what we know so far. There will be more on the issue later and how it affects employers.

The Supreme Court’s Decision

On Jan. 13, 2022, the Supreme Court of the United States (SCOTUS) ruled to stay the Occupational Safety and Health Administration’s (OSHA) vaccination and testing emergency temporary standard (ETS). The ETS was developed to establish a mandatory vaccination policy requirement for private employers with 100 or more employees.

ETS Litigation

The ETS went into effect on and has been in litigation since Nov. 5, 2021. It was blocked by the 5th U.S. Circuit Court of Appeals early on but was reinstated by the 6th Circuit on Dec. 17, 2021.

SCOTUS Reasoning

In its published decision, SCOTUS stated that OSHA was not given the power to regulate public health more broadly than occupational dangers. In addition, SCOTUS explained that challenges to the ETS were likely to succeed on the merits because the agency lacks the authority to impose the mandate. Specifically, the OSH Act only allows the agency to set workplace safety standards, not broad public health measures.

Finally, the court argues that the requirement that employees either become vaccinated or undergo weekly testing is not an exercise of federal power. Instead, SCOTUS stated the ETS represents a “significant encroachment into the lives—and health—of a vast number of employees.”

Impact on Employers

Given this new stay, employers are not required to comply with the OSHA ETS vaccination and testing mandate at this time. However, because the case has been sent back to the 6th Circuit, employers will need to continue monitoring legal developments to learn about a final decision on the ETS.

That’s what employers are asking us. If you have a question you want to be answered, email us at askapex@apexbg.com.

Brooke Salazar

Authored By

Brooke Salazar, JD, PHR

HR Consultant, Apex Associate Counsel and DE&I Officer
Meet Brooke