SCOTUS Scuttles OSHA’s ETS on COVID-19 Testing, Vaccination

Secretary of Labor Marty Walsh hopes employers ontinue to promote vaccination and testing for employees, despite the U.S. Supreme Court decision that halted OSHA ETS for vaccination-or-testing mandate.
Secretary of Labor Marty Walsh hopes employers continue to promote vaccination and testing for employees, despite the U.S. Supreme Court decision that halted OSHA ETS for vaccination-or-testing mandate.

In an unsigned opinion, the U.S. Supreme Court (SCOTUS) has ruled against the Biden administration and halted enforcement of the U.S. Occupational Health and Safety Administration’s (OSHA) Emergency Temporary Standard mandating that companies with 100 or more employees require vaccination or weekly testing for COVID-19. The ETA impacted more than 84 million workers in thousands of workplaces around the country and SCOTUS’ opinion makes it clear the majority of justices believe OSHA’s ETS overstepped the agency’s mandate to protect employees from workplace hazards.

Under the standard, covered employers were required to develop, implement and enforce a mandatory COVID-19 vaccination policy, unless they adopt a policy requiring employees to choose to either be vaccinated or undergo regular COVID-19 testing and wear a face covering at work.

In its decision, SCOTUS wrote, “OSHA has never before imposed such a mandate. Nor has Congress. Indeed, although Congress has enacted significant legislation addressing the COVID–19 pandemic, it has declined to enact any measure similar to what OSHA has promulgated here.”

Noting that many states, businesses and nonprofit organizations challenged OSHA’s rule in Courts of Appeals across the country. SCOTUS noted the Fifth Circuit initially entered a stay of the ETS. But when the cases were consolidated before the Sixth Circuit, that court lifted the stay and allowed OSHA’s rule to take effect.

“Applicants now seek emergency relief from this Court, arguing that OSHA’s mandate exceeds its statutory authority and is otherwise unlawful. Agreeing that applicants are likely to prevail, we grant their applications and stay the rule,” wrote SCOTUS in the decision.

Of the requirement for employees to either be vaccinate or undergo weekly testing at their own expense and wear masks while at work, SCOTUS said, “It is … a significant encroachment into the lives—and health—of a vast number of employees.”

U.S. Secretary of Labor Marty Walsh responded, saying he is “disappointed” in the court’s decision, calling it “a major setback to the health and safety of workers across the country.”

OSHA stands by the Vaccination and Testing Emergency Temporary Standard, he added, calling it “the best way to protect the nation’s workforce from a deadly virus that is infecting more than 750,000 Americans each day and has taken the lives of nearly a million Americans.”

He also disputed the claim from SCOTUS that OSHA overstepped its authority. “OSHA promulgated the ETS under clear authority established by Congress to protect workers facing grave danger in the workplace, and COVID is without doubt such a danger. The emergency temporary standard is based on science and data that show the effectiveness of vaccines against the spread of coronavirus and the grave danger faced by unvaccinated workers. The commonsense standards established in the ETS remain critical, especially during the current surge, where unvaccinated people are 15-20 times more likely to die from COVID-19 than vaccinated people.”

OSHA will be evaluating all options to ensure workers are protected from COVID-19, and Walsh urged employers to require workers to get vaccinated or tested weekly. “Employers are responsible for the safety of their workers on the job, and OSHA has comprehensive COVID-19 guidance to help them uphold their obligation,” said Walsh. 

“Regardless of the ultimate outcome of these proceedings, OSHA will do everything in its existing authority to hold businesses accountable for protecting workers, including under the Covid-19 National Emphasis Program and General Duty Clause.”

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About Sandy Smith

Sandy Smith is the Global EHSQ Content Lead for Intelex Technologies. Formerly the Content Director for EHS Today, she has been writing about occupational safety and health and environmental issues since 1990. Her work as a journalist and editor has been recognized with national and international awards. She has been interviewed about occupational safety and health for national business publications, documentaries and television programs; has served as a panelist on roundtables; and has provided the keynote address for occupational safety and health conferences.

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