UPDATE Wiley law firm explains the practical considerations for businesses after the Supreme Court blocked the administrations vaccine mandate for businesses with at least 100 employees. The Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS) required such businesses to ensure their workers were vaccinated against COVID-19 or undergo weekly COVID-19 testing.
The Court’s decision criticized the ETS as a “blunt instrument” that “draws no distinctions based on industry or risk of exposure to COVID-19,” notes Wiley in a bulletin. It further described the ETS as a “significant encroachment into the lives—and health—of a vast number of employees.”
The 6-3 majority concluded that the ETS exceeded OSHA’s authority to regulate occupational dangers under the Occupational Health and Safety Act (OSH Act). The Court determined that it was appropriate to stay the ETS pending the outcome of the ETS litigation in the Sixth Circuit Court of Appeals.
The Court’s ruling on the OSHA ETS limits the administration’s options for increasing the country’s vaccination rate as COVID-19 cases continue to spike, notes the law firm. There’s already a stay in effect blocking enforcement of the federal contractor vaccine mandate pending the outcome of litigation in the Sixth Circuit Court of Appeals.
Employers that would have been covered by the ETS may now discontinue their efforts to comply without fear of penalties from OSHA pending that ruling, Wiley suggests. However, OSHA has said in the past it will “vigorously enforce” a clause in the OSH Act that “requires employers to maintain a workplace free from recognized hazards that are causing or are likely to cause death or serious physical harm to their employees,” explains Wiley.
The law firm says the court decision does not limit employers’ ability to begin or continue their own vaccination or testing policies or to implement others as long as they don’t violate state law. “Accordingly, employers should continue to evaluate how they can best address the spread of COVID-19 in their workplaces,” recommends the law firm.
By Leslie Stimson, Inside Towers Washington Bureau Chief
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