On Thursday, Jan 13, the United States Supreme Court blocked the Occupational Safety and Health Administration's (OSHA) COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS). Under the ETS, employees of private businesses with 100 or more employees would have been required to either be fully vaccinated or submit to weekly testing. The rulings came three days after OSHA's emergency measure started to take effect.

In the ruling, the majority concluded that the Biden Administration overstepped its authority by seeking to impose the OSHA's vaccine-or-test rule on U.S. businesses with at least 100 employees.

The majority noted that "OSHA has never before imposed such a mandate. Nor has Congress. Indeed, although Congress has enacted significant legislation addressing the COVID-19 pandemic, it has declined to enact any measure similar to what OSHA has promulgated here." Moreover, "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," the Court wrote in the unsigned opinion.

But in a separate, simultaneously released ruling on the Administration's vaccination rules for health-care workers, the Court wrote, "we agree with the Government that the [Health and Human Services] Secretary's rule falls within the authorities that Congress has conferred upon him." This mandate, which does not include an option for weekly testing, applies to workers at hospitals and other health care facilities that participate in the Medicare and Medicaid programs. It is estimated that this rule would affect more than 17 million workers and includes medical and religious exemptions.

On January 26, OSHA formally withdrew its COVID-19 ETS in response to the U.S. Supreme Court's ruling. In the notice published in the Federal Register, OSHA states it is withdrawing the ETS but will treat it as a proposed rule and work toward a permanent COVID-19 health standard. What that future rule might look like is unclear at this time. Until that time, OSHA is encouraging employers to adopt the ETS as a voluntary standard.

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The intent of this analysis is to provide general information regarding the provisions of current federal laws and regulation. It does not necessarily fully address all your organization's specific issues. It should not be construed as, nor is it intended to provide, legal advice. Your organization's general counsel or an attorney who specializes in this practice area should address questions regarding specific issues.