On January 13, 2022, the United States Supreme Court stayed OSHA's Emergency Temporary Standard ("ETS") that requires most employers with 100 or more employees to adopt either a mandatory vaccination policy or a test-and-mask policy, finding that OSHA likely lacked authority to impose the ETS. In reaching this decision, the Court concluded that COVID-19 was not an "occupational hazard" but rather a "universal risk," and "[a]lthough 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." The Court sent the case back to the U.S. Court of Appeals for the Sixth Circuit for further review of the merits of the ETS. For now, the ETS and the January 10, 2022 and February 9, 2022 enforcement deadlines OSHA announced on December 18, 2021 are suspended until the challenges to the ETS are ultimately resolved.
Employers who have already implemented mandatory vaccination or test-and-mask policies may continue to enforce them, so long as such polices are permitted by state and local law and comply with applicable anti-discrimination laws. Employers should also be mindful that the Supreme Court's ruling on the ETS does not prevent state and local governments from enacting or enforcing their own vaccine mandates, such as the one New York City adopted, effective December 27, 2021.
For more information about the ETS, see Willkie's November 5, 2021 client alert and December 22, 2021 client alert.
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