Supreme Court Blocks OSHA COVID-19 Vaccination and Testing Emergency Temporary Standard
A 6-3 majority of the United States Supreme Court today blocked OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS), which required employers with 100 or more employees to develop, implement, and enforce a mandatory COVID-19 vaccination policy. Under the ETS, employees who chose to remain unvaccinated were required to undergo regular testing for COVID-19 and wear a face covering at work. The ETS also required employers to provide paid time off for workers to get vaccinated and paid leave for workers suffering from side effects of the vaccines, and to maintain records of each test result. Employers were not required to pay for the tests.
In its majority opinion, the Court held that requiring vaccination is an exercise of power that would need to be explicitly granted by Congress and that OSHA, in seeking to mandate public health measures, had overstepped its authority, which is limited to the workplace. “Although COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most,” the majority write. “COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. … 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 majority acknowledge OSHA’s authority “to regulate occupation-specific risks related to COVID-19 … [w]here the virus poses a special danger because of the particular features of an employee’s job or workplace.” Such risks would be present for researchers who handle the COVID-19 virus or in workplaces that are particularly crowded, according to the majority. But the opinion states that “OSHA’s indiscriminate approach fails to account for this crucial distinction—between occupational risk and risk more generally—and accordingly the mandate takes on the character of a general public health measure.”
A concurring opinion by Justice Neil Gorsuch, joined by Justices Clarence Thomas and Samuel Alito, holds that even if the Occupational Safety and Health Act had granted OSHA the power to mandate vaccination, doing so would have represented “an unconstitutional delegation of legislative authority.”
In their dissent, Justices Stephen Breyer, Sonia Sotomayor, and Elana Kagan object to the majority’s characterization of the ETS as a “vaccine mandate” because the standard allows employers to institute a policy of masking and testing instead of vaccination. The dissenting opinion challenges the majority’s finding that the ETS represents an overreach of OSHA’s authority. “OSHA’s rule perfectly fits the language of the applicable statutory provision,” the minority write, which “not just enables, but commands … OSHA to issue an emergency temporary standard whenever it determines” that workers face grave danger in workplaces.
In a statement, Secretary of Labor Marty Walsh said, “I am disappointed in the court’s decision, which is a major setback to the health and safety of workers across the country. OSHA stands by the Vaccination and Testing Emergency Temporary Standard as 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.”
Walsh also indicated that OSHA will use its COVID-19 National Emphasis Program (PDF) and the General Duty Clause of the OSH Act to protect workers during the COVID-19 pandemic.
The Court’s majority, concurring, and dissenting opinions are available as a PDF download.