By Eric J. Conn, Chair, OSHA Practice Group

After its normal release of opinions this morning that did not include a decision about whether to stay OSHA’s vaccinate-or-test ETS, this afternoon, at approximately 2:30 PM, the United States Supreme Court issued a per curiam decision reinstituting a stay of OSHA’s ETS.  Here is a link to the opinion of the Court.

A per curiam decisions is a court opinion issued in the name of the Court rather than specific judges, but it is certainly not an indication that the decision was unanimous or non-controversial, and in this instance, we know it was not that.  The decision was 6-3 with a concurrence by Justice Gorsuch (joined by Justices Thomas and Alito), and a joint dissent by Justices Breyer, Sotomayor, and Kagan.

What Was the Legal Basis for the Court’s Decision?

As we anticipated based on the tone of last week’s oral argument last week, the majority of the Court based its decision on the lack of an explicit enough delegation of authority from Congress for OSHA to issue a regulation of this significance and of an issue that is not unique to the workplace.  That rationale could have broader implications for OSHA’s regulatory reach than just this COVID-19 ETS (see heat illness):

“Although COVID–19 is a risk that occurs in many workplaces, it is 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.”

Under this theory, the majority opinion indicates that there are some issues that are of such “exceptional political and economic” consequence that the courts will presume Congress did not intend to delegate the issue to agencies unless the delegating statute is clear.  More specifically, for those rare, really significant regulations that have really significant impacts on the country, Congress needs to be somewhat precise in its intention to delegate its legislative duty to an executive agency.  In this context, the OSH Act’s now-fifty year old and rather generic delegation of rulemaking authority does not grant a clear enough mandate for OSHA in this context.  That is, the OSH Act may be a clear enough delegation of authority for those not-quite-so-major-issues about which OSHA typically develops and enforces regulations, but not for something so fundamental as “ordering 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.’”  And while the vaccinate-or-test rule may be an appropriate subject for a rule that OSHA could issue and enforce, if that is to be a nationwide rule of that importance, that is, in order for OSHA to lawfully issue and enforce that rule, it would need to be the result of a pretty express and somewhat recent delegation of authority from Congress.

So, it should be the States, or at least the US Congress, which is closer to the pulse of the American people, not OSHA on its own, that should decide whether there should be a vaccination requirement of any kind for major segments of the population. As Justice Gorsuch wrote in his concurring opinion:

“The question before us is not how to respond to the pandemic, but who holds the power to do so. The answer is clear: Under the law as it stands today, that power rests with the States and Congress, not OSHA.”

In other words, this kind of policy is something important enough that it deserves legislation, not a sub-cabinet agency regulation.  And really, it has been two years into the pandemic, and a full year into the rollout of a safe and efficacious vaccination program with ample supplies, and not only has Congress not passed a law that requires vaccination or large scale testing programs in workplaces, or for healthcare workers, or for federal contractors, etc., it has not even seriously debated it publicly.

And the majority does clarify that OSHA is not blocked from any regulation regarding COVID-19, just a broad, one-size-fits-all approach like the vaccinate-or-test ETS:

“That is not to say OSHA lacks authority to regulate occupation-specific risks related to COVID–19. Where the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are plainly permissible. We do not doubt, for example, that OSHA could regulate researchers who work with the COVID–19 virus. So too could OSHA regulate risks associated with working in particularly crowded or cramped environments. But the danger present in such workplaces differs in both degree and kind from the everyday risk of contracting COVID–19 that all face.”

In that regard, simultaneously with this opinion about the OSHA ETS, the Supreme Court issued a companion decision upholding CMS’s authority to issue its regulation setting a hard vaccine-mandate for certain healthcare workplaces.

Here is the specific relief granted in the OSHA ETS decision:

“The applications for stays presented to JUSTICE KAVANAUGH and by him referred to the Court are granted. OSHA’s COVID–19 Vaccination and Testing; Emergency Temporary Standard, 86 Fed. Reg. 61402, is stayed pending disposition of the applicants’ petitions for review in the United States Court of Appeals for the Sixth Circuit and disposition of the applicants’ petitions for writs of certiorari, if such writs are timely sought. Should the petitions for writs of certiorari be denied, this order shall terminate automatically. In the event the petitions for writs of certiorari are granted, the order shall terminate upon the sending down of the judgment of this Court.”

While the decision technically is only a temporary stay of the ETS pending a full review of the legal challenges to the rule by the Sixth Circuit, the Court’s conservative justices sent an unmistakable signal that the High Court conservative majority believes OSHA exceeded its statutory authority in issuing a workplace standard to address an issue of broad public health.

The three progressive justices issued a scathing dissent essentially charging that a stay would result in the loss of tens of thousands of lives to COVID-19.

What does OSHA Have to Say About This?

Shortly after the Supreme Court issued this important decision, President Biden’s Secretary of Labor, Marty Walsh, issued this statement:

“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.

“OSHA promulgated the ETS under clear authority established by Congress to protect workers facing grave danger in the workplace, and COVID is without doubt such a danger. The emergency temporary standard is based on science and data that show the effectiveness of vaccines against the spread of coronavirus and the grave danger faced by unvaccinated workers. The commonsense standards established in the ETS remain critical, especially during the current surge, where unvaccinated people are 15-20 times more likely to die from COVID-19 than vaccinated people. OSHA will be evaluating all options to ensure workers are protected from this deadly virus.

“We urge all employers to require workers to get vaccinated or tested weekly to most effectively fight this deadly virus in the workplace. Employers are responsible for the safety of their workers on the job, and OSHA has comprehensive COVID-19 guidance to help them uphold their obligation.

“Regardless of the ultimate outcome of these proceedings, OSHA will do everything in its existing authority to hold businesses accountable for protecting workers, including under the Covid-19 National Emphasis Program and General Duty Clause.”

What About the State OSH Plans?

Also a quick word about what this means for the State OSH Plans.  The Supreme Court’s decision today to reinstitute a stay of the federal OSHA vaccinate-or-test ETS technically affects only the federal rule.  Since the basis on which the Court struck down the federal ETS was based on the scope of a delegation of rulemaking authority by the US Congress to federal OSHA, the decision is only applicable to fed OSHA, the fed OSH Act, and the US Congress.  It would not be applicable to any State OSH Plan that would have its regulatory authority arising out of a state statute.  To be clear, without a fed OSHA ETS on the books, the State Plans will not be compelled to issue their own versions of a vaccination ETS, but this ruling by the Supreme Court does not block them from doing so on their own accord.  From a practical standpoint, however, we just watched 100% of the State OSH Plans sit on the sidelines while the Fifth Circuit’s Stay of the fed ETS was in effect.  Every one of those state plans could have moved ahead with their own versions of a vaccination ETS, but they all pumped the brakes, including those that we might have anticipated to be most aggressive (i.e., Cal/OSHA, WISHA, and OR OSHA).  Even during the period that the Stay was lifted between December 17^th and today, only MN OSHA moved ahead to adopt the vaccinate-or-test ETS.  We would not be terribly surprised to see most (or maybe even all) of the State Plans stand down again.

For now, it seems the Vaccinate-or-Test ETS has been put to rest by the Supreme Court, and there are no regulatory obligations to meet pursuant to the ETS.  There does still remain the OSH Act’s General Duty Clause, so employers are now faced with a return to evaluating whether they are making reasonable efforts to protect their employees from pandemic hazards when measured against the multitude of various CDC and OSHA guidance for COVID-19 workplace protocols.