By: Jessica Jackler
On January 13, 2022, the United States Supreme Court granted an emergency stay of OSHA’s Emergency Temporary Standard (ETS) requiring all employers with at least 100 employees to mandate that all employees be fully vaccinated against COVID-19, or (on a voluntary basis) provide an option for employees to submit to weekly COVID-19 testing and wear a mask.
In the 6-3 decision, the majority reached its ruling finding that the parties opposing the ETS are likely to succeed on the merits of their case because OSHA lacked authority to impose the mandate and because the Occupational Health and Safety Act (“Act”) does not plainly authorize the mandate. The majority found that the Act, which empowers OSHA to set workplace safety standards, does not provide OSHA with the power to enact such a broad public health measure.
The Court’s stay is not a final ruling on the issue. Rather, the case will go back to the Sixth Circuit Court of Appeals to decide the merits of the case, and it may ultimately end up before the Supreme Court again.
For the time being, covered employers are not required to implement the vaccine mandate and are provided additional time to potentially prepare to comply with it. However, employers may voluntarily implement, or continue to require a vaccine mandate. Stay tuned for further updates.