What Happened?

On January 13, 2022, the United States Supreme Court (the “Court”) granted the stay of the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS) requiring businesses with 100 or more employees to put a policy in place that mandated either vaccinations or the option for employees to vaccinate or test weekly and mask. The separate mandate for health care workers, however, was upheld. In a 6-3 decision, the Court held that it is probable that the ETS’s challengers will win – OSHA likely lacks the authority given to it under the Occupational Safety and Health Act to promulgate the ETS. The Court stated that COVID-19, while a risk in many workplaces, is not necessarily an occupational hazard in most workplaces. The Court held that the rule is likely more of a general public health measure, which Congress did not give OSHA the power to put in place, as opposed to an occupational safety or health standard.

What Does This Mean?

This ruling presses pause on enforcement of the ETS while the rule is pending further review from the U.S. Court of Appeals for the Sixth Circuit. The Court did not block the ETS for good, and the rule could work its way to the Court again for a final review after the Sixth Circuit further reviews the legality of the ETS. Enforcement of the ETS is currently put on hold, but the rule in its current form, or, more likely, a different, less restrictive form, could still ultimately be upheld. In the meantime, OSHA could choose to issue a narrower rule that would be more likely to be upheld.

For now, employers with 100+ employees no longer need to implement policies requiring either vaccination and safety measures or the choice to vaccinate or test weekly and mask. Employers are free to put in place their own policies, so long as such policies comply with the applicable state laws on the topic. States and local governments are also free to implement COVID-19 protocols, including vaccination.

What about State OSHA Rules?

Many states have their own workplace safety agencies that directly regulate employers in their respective states. Such states are known as “state plan” states. The Court’s ruling does not necessarily impact rules put forth by the state plan states, but those states may choose to mirror the federal government and pause their rules. For example, Minnesota adopted the federal OSHA standard on January 3, 2022. However, MNOSHA announced last week that it will suspend enforcement of the MNOSHA rule in light of the Court’s ruling, but encourages employers to continue implementing the standard due to the surge of the Omicron variant.

What about the Federal Contractor Mandate?

The Court did not address the federal contractor mandate, Executive Order 14042, in its January 13, 2022 decision. However, that mandate is currently halted under a preliminary injunction covering all 50 states, DC, and US territories. The injunction prevents the federal government from enforcing the vaccine mandate, and the federal government has advised that it will not enforce the requirements of the order as a whole. However, workers still need to follow any workplace safety requirements and protocols that apply in federal offices and facilities when working on-site. The preliminary injunction does not mean that a final decision has been made about the order – the litigation is still playing out, and the Biden Administration is likely to appeal any decision ultimately blocking the order.

If you have any questions, please contact Laura Pfeiffer at 612.604.6685, [email protected] or Mark Pihart at 612.604.6623, [email protected].

January 19, 2022