U.S. Supreme Court Issues Stay of OSHA Large Employer Vaccine-or-Test Mandate

As previously discussed, the Biden administration implemented sweeping COVID-19 mitigation efforts, focused on increasing the vaccination rate.  Among those efforts was an ETS issued by OSHA mandating employers with 100 or more employees to require its employees either be vaccinated against COVID-19 or produce negative COVID-19 tests on a weekly basis and wear masks while at work (the “OSHA Mandate”).  The OSHA Mandate has been the subject of litigation since its inception, leading to uncertainty as to the validity of the Mandate.  That litigation went all the way to the Supreme Court of the United States, which, today, granted a stay of the OSHA Mandate—pausing its implementation nationwide—while the legality of the OSHA Mandate continues to work its way up through the courts. 

OSHA is an administrative agency created by Congress to address workplace safety issues.  The basis of the Court’s decision is that the OSHA Mandate did not address workplace safety issues, but instead more broadly attempted to “regulate hazards of daily life[,] simply because most Americans have jobs and face those same risks while on the clock.” 

The Court criticized the OSHA Mandate as a “blunt instrument” attempting to hammer away at a general public health issue, not a work-related danger.  As the Court stated, even though “COVID-19 is a risk in many workplaces, it is not an occupational hazard in most.”  Instead, for most workplaces, the risk of contracting COVID-19 is the “kind of universal risk [that] is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases.” 

Because OSHA’s enabling legislation empowers it to address workplace safety issues only, the OSHA Mandate fell outside of its authority.  However, the Court also stated that its conclusion “is not to say OSHA lacks authority to regulate occupation-specific risks related to COVID-19,” noting potential authority over COVID-related workplace safety issues for virus researchers and those that work in particularly crowded or cramped environments.  Put another way, OSHA has authority over occupational risks related to COVID-19, but it does not have authority over general COVID-19 health issues simply because most Americans have an occupation. 

At this point, the challenge to the OSHA Mandate will proceed back down to the Sixth Circuit Court of Appeals, but may potentially reach the Supreme Court again after it is fully litigated in the Sixth Circuit.  In the meantime, employers and their employees are not subject to the vaccine-or-test requirements of the OSHA Mandate.

If you have any questions about the OSHA Mandate or otherwise, please contact a MacDonald Illig attorney.


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