UPDATE-U.S. Supreme Court Halts OSHA Covid-19 Emergency Temporary Standard
OSHA Mandate. On January 13, the United States Supreme Court granted the application to stay OSHA’s Emergency Temporary Standard (“ETS”). The ETS would require most employees of employers with at least 100 employees to receive a COVID–19 vaccine, or engage in weekly testing and wear a mask.
In its Order, the Court states, “The question, then, is whether the [Occupational Safety and Health] Act plainly authorizes the Secretary’s mandate. It does not. The Act empowers the Secretary to set workplace safety standards, not broad public health measures.” The Court recognized OSHA’s authority to regulate “work-related dangers; ” however, the Court concluded that COVID-19 is not such a danger specifically related to work. OSHA’s approach exceeded its statutory authority:
Although COVID–19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases. 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.
The case now returns to the United States Court of Appeals for the Sixth Circuit for review.
HHS Mandate. On the other hand, the Court upheld the employee vaccination rule promulgated by the Department of Health and Human Services. The HHS mandate provides that “in order to receive Medicare and Medicaid funding, participating facilities must ensure that their staff—unless exempt for medical or religious reasons—are vaccinated against COVID–19.” Unlike the OSHA mandate, the Court conclude “that the Secretary [Health and Human Services] did not exceed his statutory authority in requiring that, in order to remain eligible for Medicare and Medicaid dollars, the facilities covered by the interim rule must ensure that their employees be vaccinated against COVID–19.
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Samuel J. Castree, Jr., Senior Vice-President & General Counsel
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