Last week, in a statement and a notice of withdrawal, the Occupational Safety and Health Administration (OSHA) officially withdrew its emergency temporary standard (“ETS”) that required large employers, with 100 or more employees, to implement COVID-19 vaccination mandates (the “Vaccine Mandate ETS”). OSHA’s official withdrawal of the Vaccine Mandate ETS came in the wake of the Supreme Court’s decision to delay the enforcement of its implementation, awaiting a decision of its legality from the Sixth Circuit Court of Appeals.
Statutorily, OSHA can expedite its regulation of the workplace through the ETS process – but only in limited circumstances. In so doing, under 29 U. S. C. §655(c)(1), OSHA must demonstrate:
- that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and
- that the emergency standard is necessary to protect employees from such danger.
Because an ETS does not require the standard notice-and-comment rulemaking procedures, the ETS process streamlines OSHA’s ability to effectuate workplace safety standards. However, an ETS is contemplated to have a six-month shelf-life from its promulgation – until it is superseded by permanent workplace standards.
In early November 2021, OSHA unveiled the Vaccine Mandate ETS, which required employers with 100 or more employees to either:
- create a COVID-19 vaccination mandate for their workplace; or, alternatively,
- create a policy where employers could opt to receive a vaccination or, in lieu of vaccination, undergo regular COVID-19 testing protocols and wear a face covering at work.
Immediately, OSHA faced legal challenges to the Vaccine Mandate ETS.
The Supreme Court decided to hear whether to stay, or indefinitely delay, OSHA’s ability to enforce the Vaccine Mandate ETS, while the Sixth Circuit Court of Appeals decided on its legality. In National Federation of Independent Business v. Department of Labor (per curiam), the Court stayed OSHA’s ability to enforce the Vaccine Mandate ETS, ruling that Congress had failed to grant OSHA the ability to regulate such a broad public health mandate. In so doing, the Court found that challengers of the Vaccine Mandate ETS were likely to succeed on the merits because: “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.” (Emphasis added).
Three Justices (Breyer, Sotomayor, and Kagan) dissented to the Court’s per curiam decision.
In the wake of its withdrawal of the Vaccine Mandate ETS, OSHA continues to strongly encourage vaccination among workers and remains committed to unveiling a permanent healthcare standard aimed at addressing workplace health and safety concerns caused by COVID-19.