Supreme Court Stays OSHA ETS Vaccination and Testing Mandate
January 14, 2022
On January 13, 2022, the Supreme Court of the United States (SCOTUS) ruled to stay the Occupational Safety and Health Administration’s (OSHA) vaccination and testing emergency temporary standard (ETS). The ETS was developed to establish a mandatory vaccination policy requirement for private employers with 100 or more employees.
The ETS went into effect on and has been in litigation since November 5, 2021. It was blocked by the Fifth U.S. Circuit Court of Appeals early on but was reinstated by the Sixth Circuit on December 17, 2021.
In its published decision, SCOTUS stated that OSHA was not given the power to regulate public health more broadly than occupational dangers. In addition, SCOTUS explained that challenges to the ETS were likely to succeed on the merits because the agency lacks the authority to impose the mandate. Specifically, the OSHA act only allows the agency to set workplace safety standards, not broad public health measures.
Finally, the court argued that the requirement that employees either become vaccinated or undergo weekly testing is not an exercise of federal power. Instead, SCOTUS stated the ETS represents a “significant encroachment into the lives—and health—of a vast number of employees.”
Impact on Employers
Given this new stay, employers are not required to comply with the OSHA ETS vaccination and testing mandate at this time. However, because the case has been sent back to the Sixth Circuit, employers will need to continue monitoring legal developments to learn about a final decision on the ETS.
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The above information does not constitute advice. Always contact your employee benefits broker or trusted advisor for insurance-related questions.