The United States Supreme Court has entered a “stay” blocking OSHA’s Emergency Temporary Standard (ETS) requiring that employers with 100+ workers require full vaccination against COVID-19 or weekly testing plus face coverings for onsite workers.
The Supreme Court’s order can be found here: https://www.supremecourt.gov/opinions/21pdf/21a244_hgci.pdf.
In the order, Justice Kavanaugh writes for the majority: “Congress has indisputably given OSHA the power to regulate occupational dangers[.]” However, “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 opinion also states: “It is telling that OSHA, in its half century of existence, has never before adopted a broad public health regulation of this kind—addressing a threat that is untethered, in any causal sense, from the workplace.”
What does this mean for employers?
The pending legal challenges are being sent back to the Sixth Circuit Court of Appeals to evaluate the facts and arguments in light of the Supreme Court’s ruling. For now, the OSHA ETS is on hold, including the weekly testing requirement (that was supposed to take effect 2/9/22) and certain requirements that already went into effect on 1/10/22.
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