ARTICLE
14 January 2022

Supreme Court Stays OSHA's COVID-19 Vaccination And Testing Mandate

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Rhoades McKee PC

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Operating in West Michigan since 1960, Rhoades McKee is a comprehensive full-service law firm, with over 50 attorneys and 25 legal practice specialties.  With offices in Grand Rapids, Holland and Hastings, we provide services across Business and Litigation, Real Estate and Construction and Family and Individual law.
Today, January 13, 2022, the United States Supreme Court stayed enforcement of the Department of Labor's Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard (ETS).
United States Employment and HR
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Today, January 13, 2022, the United States Supreme Court stayed enforcement of the Department of Labor's Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard (ETS).

As written, the ETS would require roughly 84 million workers in the private sector to either become vaccinated or submit to weekly testing at their own expense and wear a mask to remain on the job. The ETS also would require covered employers with more than 100 employees to provide paid time off for workers to be vaccinated and/or recover if they experience post-vaccination effects.

Since releasing the ETS in November 2021, OSHA and the Biden Administration have faced significant opposition to the proposed vaccinate or test rule, including dozens of lawsuits consolidated into the opinions released today by the Supreme Court. With few exemptions, the rule was designed to include as many workers as possible to combat the ongoing COVID-19 pandemic.

The sweeping rule is broader than anything OSHA has ever mandated. The Court concluded that OSHA does not have the power to regulate public health in this way. OSHA's power is limited to regulating occupational dangers. According to the Court, the ETS strays beyond that narrow scope, particularly because it does not differentiate between occupations or industries to address the relative risk of workplace spread of COVID-19 and instead treats all private employers with more than 100 employees the same.

The Supreme Court's ruling means that OSHA's planned enforcement is stayed and will not proceed as scheduled.  The cases now go back to the Sixth Circuit Court of Appeals for litigation on the merits of the petitions challenging the ETS (the Supreme Court's decision was solely whether to stay enforcement of the ETS while the litigation was pending). With today's decision illustrating that a majority of the Supreme Court believes the rule is overly broad, it seems unlikely that the Sixth Circuit will allow the ETS to be implemented.

Michigan employers should note that MIOSHA may issue its own rule or otherwise act prior to its January 24, 2022 deadline to either adopt OSHA's mandate or to issue its own rule that is at least as restrictive.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

ARTICLE
14 January 2022

Supreme Court Stays OSHA's COVID-19 Vaccination And Testing Mandate

United States Employment and HR

Contributor

Rhoades McKee PC logo
Operating in West Michigan since 1960, Rhoades McKee is a comprehensive full-service law firm, with over 50 attorneys and 25 legal practice specialties.  With offices in Grand Rapids, Holland and Hastings, we provide services across Business and Litigation, Real Estate and Construction and Family and Individual law.
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