U.S. Supreme Court Hears Arguments on OSHA’s Employee Vaccine ETS

Last Friday, the U.S. Supreme Court heard arguments on Occupational Safety and Health Administration (OSHA)’s emergency temporary standard (ETS) requiring large U.S. businesses (100 or more employees) to have a shot-or-test rule in place for employees, which went into effect this past Monday impacting more than 80 million workers, who will either have to be vaccinated against Covid-19 or submit to regular testing.  Twenty-six business groups and a separate group of 27 states are challenging the rule, arguing that OSHA did not demonstrate that the standard is needed to protect workers against COVID, and that the agency did not  have the authority to issue such a mandate in the first place.  Per Chief Justice Roberts, “the pandemic sounds like the sort of thing that states will be responding to or should be, and that Congress should be responding to or should be, rather than agency by agency the federal government and the executive branch acting alone.” While these employers await the Supreme Court’s decision on the ETS, OSHA continues to develop a permanent standard due May 5, 2022.   On December 17, 2021, the Sixth Circuit overturned the Fifth Circuit’s decision, and allowed the mandate to go back into effect nationwide.  OSHA has announced that it will not issue citations for noncompliance with the ETS requirements before January 10, 2022, except for the testing requirements, which will not be enforced until February 9, 2022.