In a very quick turnaround decision, the U.S. Supreme Court stopped the enforcement of the OSHA vaccine mandate rules in an opinion issued on Thursday, January 13th. The Supreme Court heard oral arguments about the OSHA rules last Friday, January 7th, so to issue a decision in less than a week is quite spectacular.
Six of the nine justices joined in the decision to stop the OSHA rules. The three most liberal leaning justices, Justices Sotomayor, Breyer and Kagan, dissented and stated that they would have continued to allow the OSHA rules to be enforced because COVID19 poses a grave danger to everyone, including workers.
But the dissenting opinion did not rule the day, as Justices Roberts, Alito, Barrett, Kavanaugh, Thomas and Gorsuch agreed that OSHA exceeded its authority when it issued the Emergency Temporary Standards (ETS) back in November 2021. The Supreme Court’s decision to do away with the OSHA vaccine mandate rules leaned on the argument that the rules were too broad, an argument that carried the day when the Texas District Court ruled against the OSHA vaccine mandate back in November. The Supreme Court stated that the regulation “operates as a blunt instrument. It draws no distinctions based on industry or risk of exposure to COVID-19. Thus, most lifeguards and lineman face the same regulations as do medics and meatpackers.”
Moreover, the Supreme Court commented that OSHA is not a public health agency. It’s focus is on occupational hazards, not hazards that affect everyone, even outside the workplace. The Court stated “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.”
Even though the Supreme Court ordered the OSHA rules to stop taking effect immediately, the Court did hint to OSHA and the Biden Administration a way it might approve the rules in the future. The Court stated that “OSHA could regulate researchers who work with the COVID-19 virus” or it could regulate workers who work in “particularly crowded or cramped environments.”
That signals a way OSHA could re-write the COVID19 vaccine mandate rules that would survive a legal challenge. Specifically, if OSHA re-wrote the rules to be more narrow to workplaces where COVID19 infection is higher risk than just living out our daily lives, the Court may uphold such rules. Given that direction, it may be possible, if not likely, that OSHA will re-write the rules to be more narrow and to focus on work environments that are scientifically proven to be more hazardous when it comes to catching or transmitting COVID19.
You can read the full opinion of the Supreme Court here.
What Does This Decision Mean for Employers Right Now?
This means that employers who are opposed to implementing a COVID19 vaccine mandate on its workforce do not have to do so. The OSHA rules are no longer in effect. But, employers who wish to implement a vaccine mandate despite the OSHA rules can do that too, unless the employer is based in a state that forbids it. As we noted in a previous blog post:
Several states, such as Alabama, Arkansas, Iowa, West Virginia, Tennessee, Texas, Montana, and Florida have passed laws relating to COVID19 vaccine mandates. Indeed, on November 18, 2021, Florida passed a law that prohibits employers from mandating the COVID19 vaccine. Employers must allow employees to opt for periodic testing or PPE as an exemption to getting the vaccine. Employers who violate the state law can face $10,000 fine per employee for small businesses (99 or fewer employees) or $50,000 fine per employee for large businesses. For employers in these states and the wellness professionals and organizations who service them, any COVID19 vaccine policy should pay attention to state laws to ensure the employer’s vaccine policy does not violate the state law.
As a result, as with planning workplace wellness programs, employers should decide what is best for their employee population, consider state and federal laws that affect that decision, and then move forward. If you need help in deciding how to move forward in the most compliant way, do not hesitate to contact our law firm. We are here to help you.