On Thursday, January 13, 2022, the U.S. Supreme Court blocked enforcement of the vaccine-or-test requirement for private employers with 100 or more employees but allowed the vaccine mandate for healthcare workers to take effect nationwide.
The Occupational Safety and Health Administration (“OSHA”) COVID-19 Emergency Temporary Standard (“ETS”) mandate required private employers with 100 or more employees to either mandate COVID-19 vaccination or require weekly COVID-19 testing and mask mandates. In December 2021, the U.S. Court of Appeals for the Sixth Circuit issued an order supporting the private employer vaccination mandate by dissolving the nationwide injunction of the OSHA COVID-19 ETS and overturning the opposite result that had recently been issued by the U.S. Court of Appeals for the Fifth Circuit in November 2021.
Right after the Sixth Circuit ruled in favor of the private employer mandate, several petitioners immediately filed an emergency request with the U.S. Supreme Court to stay the Sixth Circuit’s order.
After hearing arguments on the issue, the Supreme Court granted the stay agreeing that “[a]pplicants are likely to succeed on the merits of their claim that the Secretary lacked authority to impose the mandate.” In its decision, the Court expressed doubt that the broad mandate was supported by legal authority, stating that “[a]lthough Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly.” The Court further reasoned that “[r]equiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category.”
It is important to note that this ruling does not affect federal contractors. There is a separate mandate applicable to federal contractors that has been covered in a previous blog.