The End of the OSHA Vaccine and Testing Mandate for Large Employers

What a wild ride it was for us all.  For months we have been anticipating the start of the OSHA Emergency Temporary Standard after it was announced by President Biden, and the ETS took us all the way up to weeks before mandatory testing was set to start for all employers with more than 100 employees.  And now, the U.S. Supreme Court has struck down the standard issued by OSHA, and adopted by many states across the country.

Thursday afternoon, the Supreme Court issued its decision to stay the ETS.  The issue decided by the court was whether OSHA, which is charged with overseeing workplace safety, could mandate the vaccination or regular testing of 84 million people. The Court noted that any standards passed by OSHA needed to be “reasonably necessary or appropriate to provide safe or healthful employment.”  It noted of the nine ETSs issued by OSHA, six were challenged in court, and only one was upheld in full.  The Court held that the Act only empowers the Secretary of OSHA to set “occupational safety and health standards.” The Court then held that COVID-19 is not an occupational hazard in most workplaces.

However, the Court did take time to note that OSHA may not lack the “authority to regulate occupation-specific risks related to COVID-19” where the virus “poses a special danger because of the particular features of an employee’s job or workplace.”  Thus, it did not bar regulations targeted at specific industries where the threat of COVID-19 infection was greater, such as workplaces where workers are in “particularly crowded or cramped environments.”  In short, the Court referred to the regulation as a public health regulation, rather than an occupational regulation, and thus outside the scope of the Act.

With that, the ETS was stayed, and the decision on whether to implement a vaccine or testing mandate was left to Congress.  The case may proceed before the Sixth Circuit, which will hear the case and issue a decision based on the Supreme Court’s interpretation of the statute.  The Sixth Circuit is bound to heed the interpretations of statute issued by the Supreme Court.

For us Minnesotans, shortly after the Supreme Court’s decision was announced, MNOSHA announced that it would suspend enforcement of the ETS, which it adopted by reference, “pending future developments,” while warning it will continue to enforce previous standards put in place to protect employees, such as the use of PPE and respiratory protection.  With that, employers are not required to continue programs they may have begun in order to comply with the vaccine and testing ETS.

While COVID-19 has not gone anywhere, the requirements for large, non-Medicare recipient employers to gather vaccine information and test employees are gone for now.  As the Court stated, they may return on a more workplace-specific level, or states could take the lead in implementing their own standards.  We will keep apprised of any future developments.  If you, or your organization, need any assistance with working through the pandemic with your employees, contact Wiley Reber Law, for experience that works.