Today (1/13/22), the U.S. Supreme Court blocked the Biden administration’s vaccine mandate by enjoining OSHA’s ETS, which required employers to mandate vaccines or test unvaccinated employees weekly. The Court found that Congress had not given federal agencies like OSHA the power to impose sweeping requirements in workplaces across the nation.
The 6-3 majority (J. Gorsuch, concurring) held in pertinent part:
- “Although COVID-19 is a risk that occurs in many workplaces, it it not an occupational hazard in most. COVID-19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases. 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 regulation . . . operates as a blunt instrument. It draws no distinctions based on industry or risk of exposure to COVID-19. Thus, most lifeguards and lineman face the same regulations as do medics and meat-packers.”
- “The Secretary has ordered 84 million Americans to either obtain a COVID-19 vaccine or undergo weekly medical testing at their own expense. This is no ‘everyday exercise of federal power.’ . . . It is instead a significant encroachment into the lives—and health—of a vast number of employees.”
- “That is not to say OSHA lacks authority to regulate occupation-specific risks related to COVID-19 . . . [But] OSHA’s indiscriminate approach fails to account for this crucial distinction— between occupation risk and risk more generally—and accordingly the mandate takes on the character of a general public health measure, rather than an ‘occupational safety or health standard.’”
- “Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly. Requiring the vaccination of 84 million Americans, selected simply because they wok for employers with more than 100 employees, certainly falls in the latter category.”
As a result of today’s decision, OSHA’s ETS are unenforceable. And absent congressional action, the vaccine-or-test mandate is likely done forever. If you have questions, please contact any BurnsBarton attorney.
