Following an expedited hearing on January 7, 2022, the United States Supreme Court granted a petition for stay of enforcement of OSHA’s COVID-19 Vaccination and Testing; Emergency Temporary Standard that would have been imposed on employers of 100 or more employees.  This stay is, in effect, injunctive relief pending disposition of the numerous businesses, trade groups, and non-profit organizations’ consolidated petitions for review in the Sixth Circuit Court of Appeals.

The Court disagreed with the Sixth Circuit’s prior opinion and determined that the applicants’ petitions challenging the constitutionality of the mandate were likely to prevail.  The core of the opinion focused on two questions: (1) what is OSHA’s limit of authority, if any; and (2) whether the mandate appropriately tailored to the authority conferred upon OSHA. The Court answered the first question by emphasizing that OSHA is permitted to set “workplace safety standards, not broad public health measures.” 

In a forceful rebuttal to the OSHA’s argument in favor of the mandate, the Supreme Court stated:

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 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.

In answer to the second question, the Court found OSHA’s current mandate to be inappropriately indiscriminate. Nevertheless, the Court provided some guidance to OSHA: “[w]here the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are plainly permissible.”

Accordingly, for the time being, employers with over 100 employees need not fear being cited by OSHA for non-compliance. However, this is not the end of the line for this issue. The Sixth Circuit will now take up the question of whether OSHA’s mandate is constitutional. Depending on the result, all eyes may once again turn to the Supreme Court to provide finality to the issue.

This blog is presented under protest by the law firm of Ervin Cohen & Jessup LLP. It is essentially the random thoughts and opinions of someone who lives in the trenches of the war that often is employment law–he/she may well be a little shell-shocked. So if you are thinking “woohoo, I just landed some free legal advice that will fix all my problems!”, think again. This is commentary, people, a sketchy overview of some current legal issue with a dose of humor, but commentary nonetheless; as if Dennis Miller were a lawyer…and still mildly amusing. No legal advice here; you would have to pay real US currency for that (unless you are my mom, and even then there are limits). But feel free to contact us with your questions and comments—who knows, we might even answer you. And if you want to spread this stuff around, feel free to do so, but please keep it in its present form (‘cause you can’t mess with this kind of poetry). Big news: Copyright 2021. All rights reserved; yep, all of them.

If you have any questions about this article, contact the writer directly, assuming he or she was brave enough to attach their name to it. If you have any questions regarding this blog or your life in general, contact Kelly O. Scott, Esq., commander in chief of this blog and Head Honcho (official legal title) of ECJ’s Employment Law Department.