ESR News Blog
Written By ESR News Blog Editor Thomas Ahearn
On January 13, 2022, the Supreme Court of the United States (SCOTUS) issued a ruling in National Federation of Independent Business v. Department of Labor that blocked the COVID-19 Vaccination and Testing Emergency Temporary Standard issued by the Occupational Safety and Health Administration (OSHA) that required employers with 100 or more employees to mandate COVID-19 vaccination or weekly testing in their workforces.
“Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly. Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category,” the Supreme Court ruled in an unsigned 6 to 3 majority opinion that is available here.
“In the face of a still-raging pandemic, this Court tells the agency charged with protecting worker safety that it may not do so in all the workplaces needed. As disease and death continue to mount, this Court tells the agency that it cannot respond in the most effective way possible. Without legal basis, the Court usurps a decision that rightfully belongs to others,” Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan wrote in their dissent.
“I am disappointed in the court’s decision, which is a major setback to the health and safety of workers across the country,” Secretary of Labor Marty Walsh said in a statement on the ruling. “OSHA stands by the Vaccination and Testing Emergency Temporary Standard as the best way to protect the nation’s workforce from a deadly virus that is infecting more than 750,000 Americans each day and has taken the lives of nearly a million Americans.”
On September 9, 2021, President Joe Biden announced an emergency rule requiring all employers with at least 100 employees “to ensure their workforces are fully vaccinated or show a negative test at least once a week.” On November 5, 2021, OSHA published the rule in the Federal Register requiring employers with more than 100 employees to mandate employees to be vaccinated against COVID-19 or tested weekly and wear masks at work.
On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay the COVID-19 vaccine or testing mandate and OSHA suspended the implementation and enforcement of the rule pending future developments in the litigation. On December 17, 2021, the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of OSHA’s mandate and enforcement was to begin on February 9, 2022.
On January 7, 2022, the Supreme Court heard oral arguments “on an emergency basis” regarding OSHA’s vaccine or testing mandate that would affect employers with at least 100 employees – approximately two-thirds of the private sector – and “the justices were skeptical of the administration’s attempt to impose a vaccine-or-test mandate for workers at large employers,” according to an argument analysis on SCOTUSblog.com.
COVID-19 is a potentially deadly respiratory illness that spreads from person to person. As of January 14, 2022, there are approximately 320 million global cases and 5.5 million global deaths, while the United States leads the world with approximately 64 million cases and 846,000 deaths, according to the COVID-19 Dashboard by the Center for Systems Science and Engineering (CSSE) at Johns Hopkins University (JHU).
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