Update: SCOTUS Stays OSHA's Vaccination and Testing ETS
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- OSHA’s vaccination and testing emergency temporary standard (“ETS”) is on hold once again. On January 13, 2022, the Supreme Court of the United States (“SCOTUS”) stayed the ETS pending further review before the U.S. Court of Appeals for the Sixth Circuit, or before SCOTUS (if a writ of certiorari is timely sought and granted).
OSHA's vaccination and testing emergency temporary standard ("ETS") is on hold once again. On January 13, 2022, the Supreme Court of the United States ("SCOTUS") stayed the ETS pending further review before the U.S. Court of Appeals for the Sixth Circuit, or before SCOTUS (if a writ of certiorari is timely sought and granted). In a 6-3 per curiam opinion, the majority reasoned that the petitioners were likely to succeed in their arguments that OSHA lacked the authority to impose the ETS. The majority explained that while OSHA has the power to impose workplace standards to address occupational hazards, OSHA does not have the power to impose "broad public health measures." In the majority's view, there is a universal risk of contracting COVID-19 in the workplace and elsewhere because the virus spreads anywhere people gather. Thus, allowing 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." In light of SCOTUS' decision, OSHA issued a statement on its website expressing disappointment in the latest setback, urging employers to mandate vaccinations or weekly testing, and reminding employers that it will hold them accountable for workers' safety under its existing authority (including the General Duty Clause, which generally requires employers to provide a workplace that is free from recognized hazards that cause or are likely to cause death or serious physical harm, and industry specific guidance).
Despite this new stay, the ETS is not dead (at least not yet). If the Sixth Circuit upholds the ETS, it is likely that the adverse parties will seek certiorari immediately. If SCOTUS agrees to hear the case on the merits, it is also likely that the ETS will not survive SCOTUS' review given the majority's reasoning in their opinion issuing the stay.
Even if the ETS is permanently prevented from becoming effective, its requirements could survive through other sources of authority. For example, OSHA may decide to issue a revised ETS or permanent rule that requires vaccination or testing in certain circumstances. States with an OSHA-approved state plan may decide to adopt the ETS or promulgate a similar rule. State and/or local jurisdictions that have been waiting for the ETS' outcome may decide to issue temporary or permanent laws regarding vaccine mandates and testing. Additionally, current state or local laws regulating vaccine mandates and testing remain good law unless otherwise preempted or successfully challenged. (For example, New York City's private employer vaccination mandate is still in effect.) Lastly, depending in which jurisdiction(s) they operate, employers may voluntarily impose vaccination mandates and/or testing requirements on their employees.
At this time, unless there is a state or local law mandating vaccination and/or testing, or the ETS is revived somehow, employers who do not wish to impose a vaccination or testing mandate are not required to do so. However, employers should continue to monitor the situation, as COVID-19 guidance evolves quickly. Employers, especially those who operate in multiple jurisdictions, are also encouraged to consult counsel regarding their current workplace safety obligations and how to navigate the complexities of state and local laws on this issue.
 SCOTUS' opinion may be accessed here: https://www.supremecourt.gov/opinions/21pdf/21a244_hgci.pdf.
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