NAICU Washington Update

Supreme Court Blocks Implementation of OSHA Vaccine Rule

January 14, 2022

The Supreme Court issued an injunction halting implementation of the Occupational Safety and Health Administration’s (OSHA’s) rule that established an emergency temporary standard (ETS) requiring large employers to impose a vaccine or testing mandate on their employees. As a result of the Court’s injunction, the OSHA rule will remain blocked from taking effect while the lower courts evaluate the legality of the mandate. 

In its ruling, the Supreme Court found that the challengers were likely to succeed on the merits of their claim that OSHA lacked the legal authority to impose the vaccine mandate. The OSHA ETS was initially blocked by a federal appellate court, but multiple legal challenges to the rule were consolidated in the U.S. Court of Appeals for the Sixth Circuit. Subsequently, the Sixth Circuit lifted the injunction, leading to this week’s reversal by the Supreme Court.

According to the Court, OSHA’s authorizing statute allows the agency “to set workplace safety standards, not broad public health measures…. Permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization.” The Court did, however, note that OSHA could regulate “occupation-specific risks related to COVID-19.” 

This week’s procedural ruling appears to signal that the Supreme Court would be disinclined to rule in OSHA’s favor if the case eventually returned to the Court for a ruling on the merits. As a result, it is not clear whether the Biden Administration will continue to pursue the case in the lower courts nor whether the Court’s ruling would provide sufficient leeway to allow OSHA to rewrite the ETS. 

As noted above, OSHA is currently precluded from enforcing its vaccine mandate. Although there is a slim chance that the agency could eventually prevail, the more likely result is that the rule will not go into effect. Regardless of the outcome, colleges and universities should be aware that they will not face imminent enforcement action and should await further guidance.

Meanwhile, President Biden’s Executive Order (EO) requiring federal contractors to impose a vaccine mandate on their employees remains blocked by the federal courts. Both the OSHA ETS and the EO are part of the broad COVID-19 action plan announced by President Biden in September.  

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