Supreme Court Blocks OSHA’s Shot or Test Rule

On January 13, 2022, the U.S. Supreme Court issued its much anticipated decision on the Occupational Safety and Health Administration’s (OSHA) COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) for employers with 100 or more employees. The Court stayed enforcement of the rule.

The Court blocked the mandate on the basis that OSHA had no “clear authority” from Congress to issue such a wide-spread, sweeping mandate. In its ruling, 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.

The Court recognized the mandate could force employers to incur billions of dollars in unrecoverable compliance costs and would cause hundreds of thousands of employees to leave their jobs. Likewise, the Court recognized the mandate could save over 6,500 lives and prevent hundreds of thousands of hospitalizations. Nevertheless, the Court stated:

It is not our role to weigh such tradeoffs. In our system of government, that is the responsibility of those chosen by the people through democratic processes. 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.

The stay will not be lifted in the future. The Court stated that the applicants for the stay “are likely to succeed on the merits of their claim that the Secretary lacked authority to impose the mandate.” Stated differently, if the appeal continues through its conclusion, the Court told OSHA that the government will lose the appeal and the mandate will remain unenforceable.