Pat Miller

In a 6-3 decision issued on January 13, 2022, the Unites States Supreme Court overturned a decision of the Sixth Circuit Court of Appeals that lifted a stay of the enforcement of OSHA’s vaccine or test emergency temporary standard (“ETS”).  The Supreme Court reimposed a stay, which means that while the merits of the ETS are being decided by the Sixth Circuit, OSHA cannot enforce the ETS.  It does not mean, however, that the ETS has been struck down, only that it is on hold while the courts decide its fate.  The decision was based largely on the Court’s view that the challengers were likely to succeed in their argument that in enacting the ETS OSHA exceeded its statutory authority.  According to the majority, OSHA’s ETS essentially attempts to regulate a hazard that it not unique to the workplace and that would affect the lives of millions outside of work.  What this decision means is that large employers who would have had to come into compliance with the vaccine or test rule do not need to do so, unless and until the ETS is found to be enforceable.  Employers rushing to conform to the ETS may slow their roll for now, as we expect (but can’t promise) that OSHA will provide some additional lead time to implement the ETS should it eventually be revived.

In another decision, however, the Court upheld OSHA’s ETS for healthcare work.