U.S. Supreme Court Stays OSHA ETS COVID-19 Vaccine Mandate

On January 13, 2022, the U.S. Supreme Court issued an opinion staying the Department of Labor's Occupational and Safety Health Administration’s Emergency Temporary Standard (“OSHA’s ETS”) directing private businesses with more than 100 employees to mandate COVID-19 vaccinations for employees, or have workers demonstrate a negative virus test on a weekly basis. OSHA estimates that 84.2 million employees would be subject to the mandate.

Applicants sought emergency relief from the Court, arguing that OSHA’s mandate exceeded its statutory authority and was otherwise unlawful. In a 6-3 decision and an opinion authored by Justice Gorsuch, the Court agreed that the applicants were likely to prevail on their arguments and, therefore, granted the applications to stay the rule. A pertinent part of the Court’s reasoning is as follows:

“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.”

Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan dissented to the order staying OSHA's rule. The full opinion can be found here.

For additional questions, please contact Burke Warren partner Rachel E. Bossard at 312-840-7029 or rbossard@burkelaw.com.