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OSHA’s COVID-19 Vaccination and Test ETS Stayed with SCOTUS

OSHA's COVID-19 Vaccination and Test ETS Stayed with SCOTUS

On Thursday, January 13, 2022, the Supreme Court of the United States heeft Remained the Occupational Safety and Health Administration (OSHA) COVID-19 Vaccination and Testing Temporary Emergency Standard (ETS). The Court referred the case back to the Sixth Circuit Court of Appeals, which will review the merits of the case.

The Court’s decision

The question before the Court was whether the Sixth Circuit Court’s decision to: cancel a stay and for the ETS to take effect must be rolled back. In a per curiam decision, the Court disagreed with the sixth circuit and suspended it. The Court started by discussing the unprecedented nature of the ETS. OSHA rarely issued temporary emergency standards, and when it did, federal courts rarely enforce them. The Court was impressed by the scope of the ETS. While it contained exemptions, the Court noted that the exemptions were “largely illusory,” such as those for “exclusively out-of-home” work. The “regulation acts differently like a blunt instrument,” the Court wrote, and “does not discriminate based on industry or risk of exposure to COVID-19. So most lifeguards and linemen have to deal with the same rules as doctors and meat processors.”

At least in part because of its broad scope, the Court ruled that OSHA did not have the authority to promulgate the ETS. The Occupational Safety and Health (OSH) Act “authorizes OSHA to workplace safety standards, not broad public health measures.” (Emphasis in the original.) The issuance of the ETS is not an “everyday exercise of federal power,” but rather a “significant invasion of the lives — and health — of a large number of workers.”

While COVID-19 is a risk that occurs in many workplaces, in most cases it is not an occupational hazard. COVID-19 can and will spread at home, in schools, at sporting events and wherever people gather. Those kinds of universal risks are no different from the everyday dangers everyone faces from crime, air pollution or a number of communicable diseases. Allowing OSHA to regulate the perils of everyday life — simply because most Americans have jobs and face the same risks while on the clock — would significantly expand OSHA’s regulatory authority without clear congressional approval.

The Court ruled that if OSHA had been deliberate and more focused on the employers covered by the ETS, it would have survived the judicial investigation. “Where the virus poses a special hazard because of the specificities of an employee’s job or workplace, targeted regulation is clearly permitted,” and OSHA could “regulate researchers working with the COVID-19 virus” or “regulate risks that associated with working in particularly crowded or cramped environments.” But an occupational safety and health standard that applies to any workplace with 100 or more employees — regardless of the actual conditions in those workplaces — is too broad. OSHA’s arbitrary approach does not take into account this crucial distinction – between occupational hazards and risks in general – and accordingly its mandate takes on the character of a general public health measure, rather than an ‘occupational safety or health standard’.

Citing a recent decision, the Court wrote that it expects Congress to “speak clearly when authorizing an agency to exercise powers of enormous economic and political significance.” The ETS is undisputedly an exercise of such power, and the Court ruled that the OSH Act did not clearly authorize the ETS. (“Congress Doesn’t Hide Elephants in Mouseholes” is a common refrain in Supreme Court administrative law.) Because ETS is trying to address a public health measure and not professional safety and health standard exceeded OSHA’s authority under the OSH Act. The Court granted the petitioners’ requests for emergency lodging and referred the case back to the Sixth Circuit to hear the challengers’ petitions for review.

Justice Gorsuch was the author of a unanimous opinion that Judges Thomas and Alito join them. The confluence discusses the doctrine of the key questions in more detail, concluding that Congress has not authorized OSHA to “not only regulate what happens in the workplace, but direct individuals to perform a medical procedure that will affect their lives outside of the workplace.” affects the workplace.” OSHA did not have the authority to implement the ETS without express approval from Congress.

Judges Breyer, Sotomayor and Kagan disagreed. The dissent rebuked the majority for constant reference to the ETS as a vaccine “mandatory” when it allowed a testing option and found OSHA clearly had the authority to issue the ETS.

What happens now?

The case has been referred back to the Sixth Circuit Court of Appeals to decide whether OSHA has the authority to promulgate the ETS. By staying the ETS, a majority of the Supreme Court ruled that the plaintiffs in the case are likely to be successful on the merits. While that finding is not binding on the Sixth Circuit, it is likely to influence the Sixth Circuit’s decision. Equally importantly, the ETS will expire six months after issuance – or May 5, 2022. Depending on the briefing and argumentation scheme, the Sixth Circuit may not make a decision before the ETS expires.

What are OSHA’s options?

OSHA can impose COVID-19 requirements on employers using the so-called General Duty Clause provision in the OSH Act. That provision requires employers to keep a workplace “free from recognized hazards”. The elements OSHA must prove to demonstrate a breach of the general duty clause make this a challenge. With regard to COVID-19, OSHA must demonstrate that a real COVID-19 hazard existed in the workplace – it is not enough to show that an employee could be have had COVID-19 at work and passed it on to other employees. OSHA must also demonstrate that the steps employers must take to mitigate COVID-19, such as testing, masking and vaccination, are technologically and economically feasible. For these reasons, OSHA has issued some violations of the general duty clauses related to COVID-19.

OSHA will accept comments on the ETS until January 19, 2022. OSHA has requested comments as the agency is considering issuing a COVID-19 standard using its non-emergency regulatory body. The Supreme Court majority noted that OSHA could issue a stricter standard based on increased risks in certain types of workplaces, and OSHA could choose to do just that.

What does this mean for employers?

The Supreme Court decision leaves states free to regulate employers regarding COVID-19. Twenty-two states have their own federally approved OSHA plans. Federal OSHA has no jurisdiction over private employers in those states with approved plans. State OSHA plans can adopt occupational safety and health standards as long as they are “at least as effective” as federal OSHA standards. Given the residency, OSHA currently does not have a COVID-19 standard, which is why the state of OSHA plans to adopt (or reject) standards that are the same as the ETS or less protective. For example, a state OSHA plan could adopt a standard that requires vaccination or masking but does not include weekly COVID-19 testing. Some state OSHA plans, including California, Virginia, Washington and Oregon, have already adopted COVID-19 standards. Other states OSHA plans like Iowa’s — a state that was a plaintiff in the ETS challenge — have expressly declined to do so.

The ETS also loses its preventive effect in states without federally approved OSHA plans. For example, Texas Governor Greg Abbott issued an executive order banning vaccine mandates. If enacted, the ETS would pre-empt these kinds of state laws, as it frustrates the general regulation OSHA was trying to impose by prohibiting employers from adopting one of the options in the ETS: vaccine mandates. Without the ETS, Texas and other states are free to regulate or legislate COVID-19 as they see fit.

© 2022, Ogletree, Deakins, Nash, Smoak & Stewart, PC, All rights reserved.National Law Review, Volume XII, Number 13