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By Reinstating the Stay of President Biden’s Shot-or-Test Mandate The Supreme Court Signals the End of the OSHA ETS; but, OSHA Enforcement of COVID Mitigation Measures Continues

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On the afternoon of Thursday, January 13, 2022, the U.S. Supreme Court reinstated the stay blocking implementation of President Biden’s Shot-or-Test Mandate.  The mandate, issued by OSHA through an Emergency Temporary Standard (ETS) requires all employers with 100 or more employees to implement a policy requiring Covid vaccinations or masking and weekly testing for all employees.  That requirement went into effect on January 10, 2022.  With the stay back in place, the ETS, and therefore that requirement, is again on hold.  So, what now?

It is important to recognize the Court merely reinstated the stay and did not rule on the underlying issue of whether the mandate is a legal exercise of OSHA authority.  However, in their opinion, the Court said, “Applicants [for reinstatement of the stay] are likely to succeed on the merits of their claim that the Secretary lacked authority to impose the mandate.”

Six justices, led by Chief Justice John Roberts voted in favor of reinstating the stay.  Justice Gorsuch authored a concurring opinion, joined by Justice Thomas and Justice Alito.  A dissent was filed by Justice Breyer, Justice Sotomayor, and Justice Kagan.

The majority focused on the premise, “We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.”  In this case, the majority held, Congress did not clearly authorize OSHA to enact such a sweeping mandate.  “The [OSH]Act empowers the Secretary to set workplace safety standards, not broad public health measures.”  The majority determined OSHA was limited to acting on hazards originating in the workplace, not those present throughout society as a whole, such as Covid.

The concurring opinion focused on the separation of powers between the federal government and the states: 

The federal government’s powers, however, are not general but limited and divided. Not only must the federal government properly invoke a constitutionally enumerated source of authority to regulate in this area or any other. It must also act consistently with the Constitution’s separation of powers. And when it comes to that obligation, this Court has established at least one firm rule: “We expect Congress to speak clearly” if it wishes to assign to an executive agency decisions “of vast economic and political significance.” 

OSHA’s mandate fails that doctrine’s test.

The dissent focused on the dangers posed by the Covid pandemic and pointed to lack of any express limit to OSHA’s authority.

From this decision it is clear – this is the end of the ETS.  As a practical matter, an ETS may only be in place for six months and two of those have already passed.  Further, the Supreme Court has made clear this ETS would be struck down on the merits. As a result, OSHA will have to go through the normal rulemaking procedure, should it wish to continue the mandate after expiration of the ETS.

So, what is next?

Shortly after the decision was issued, Secretary of Labor, Marty Walsh, stated OSHA will react quickly to employee complaints that employers are not implementing safe workplace practices (mainly CDC guidelines) regarding Covid and will use the General Duty Clause (which OSHA says will be enforced by mostly looking to CDC guidelines).   This statement should not be taken lightly.  This is a signal that employers who have spikes in workers showing up to work and testing positive will be cited and required to implement “abatement” steps required by OSHA.  Therefore, employers should ensure they are following CDC guidance regarding Covid mitigation strategies.

As for the ETS requirements, for now, employers adhering to the January 10, 2022 implementation date can stand down.  However, employers should not abandon the work completed so far as there are many more arguments to be made before a final ruling on this matter will be issued.

If you have any questions or concerns, please contact Joel S. Aziere at jaziere@buelowvetter.com or (262) 364-0250 or your Buelow Vetter attorney.


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