SCOTUS Rules Against OSHA’s Employee Vaccine ETS

The Supreme Court ruled against the Biden’s administration’s vaccine mandate for employers with 100+ workers, meaning employers can continue to implement COVID safety precautions as they determine for their business, subject to any state or local requirements.  The Supreme Court found the ETS is “a general public health measure, rather than an ‘occupational safety or health standard.’” It found the ETS exceeds the scope of OSHA’s authority delegated by Congress.  The court questioned whether public health generally even falls within OSHA’s expertise and it also expressed concern with the lack of precision in targeting specific work environments where COVID-19 might be an occupational hazard, operating instead as an “indiscriminate” “blunt instrument” that is also “a significant encroachment into the lives and health of a vast number of employees.”  In granting the emergency petitions to stay the ETS, the court noted the petitioners would suffer irreparable harm and the balance of the equities necessitate such relief.

The emergency rule itself acts as a notice of proposed rulemaking the agency uses to solicit comments from stakeholders under the normal rulemaking process under the Administrative Procedures Act. OSHA will analyze those comments and could issue a more narrowly tailored permanent rule where COVID-19 truly is an occupational hazard, which the Supreme Court suggested may pass constitutional muster.  Also, OSHA announced in its fall 2021 regulatory agenda that it is targeting April for a permanent airborne infection disease standard. This standard likely will consider the comments from stakeholders on the current ETS, but may also address airborne infectious diseases beyond just COVID-19, including tuberculosis (TB), varicella disease (chickenpox, shingles), and measles, as well as new and emerging infectious disease threats, such as severe acute respiratory syndrome (SARS), and pandemic influenza.