Supreme Court Blocks Nationwide COVID Vaccine-or-Test Mandate

Author: David B. Weisenfeld

January 13, 2022

The Supreme Court has blocked the Biden administration's Emergency Temporary Standard (ETS) from taking effect. The ETS would have required employers with 100 or more employees to ensure that their employees be fully vaccinated or undergo weekly testing if they are not.

But in an unsigned ruling inNational Federation of Independent Business v. OSHA, the Court noted that the Occupational Safety and Health Administration (OSHA) had never before imposed such a mandate. "The regulation operates as a blunt instrument," said the Court. "It draws no distinctions based on industry or risk of exposure to COVID-19."

The Court called the Secretary of Labor ordering 84 million Americans to either obtain the vaccine or undergo weekly COVID-19 tests, "no every day exercise of federal power." It found that OSHA's power is limited to "work-related dangers," and noted that COVID-19 does not qualify as such a danger because it is a universal risk - in the way that going to school, sporting events or other public places is a risk - rather than an occupational hazard.

"A vaccination cannot be undone at the end of the workday," the majority added in explaining that Congress never gave OSHA the power to regulate public health. As a result, the Court found that the 6th Circuit Court of Appeals erred last month in refusing to grant a stay preventing the ETS from taking effect.

In a concurring opinion, Justices Gorsuch, Alito and Thomas said the question is not how to respond to the pandemic, but who holds the power to do so. In their eyes, that power was never granted to OSHA.

In a withering dissent, Justice Stephen Breyer - joined by Justices Kagan and Sotomayor - wrote, "COVID-19 is a menace in work settings," and that the ETS clearly falls within the core of OSHA's mission of protecting American workers.

The main points made in dissent to the ruling, included:

• Congress wanted OSHA to have the tools to meet emerging dangers;
• The virus poses a grave danger to millions of employees;
• OSHA has long recognized risks that may arise both inside and outside the workplace (e.g. with unsafe drinking water, excessive noise); and
• OSHA had found businesses' claims that hundreds of thousands of employees would leave their jobs if the ETS took effect to be "greatly exaggerated."

OSHA's vaccine-or-test mandate went into effect on Monday. Enforcement for the testing component, though, was not slated to take effect until Feb. 9. But the Supreme Court's ruling today blocks the ETS from taking effect at all pending disposition of the challengers' petitions for review on the merits in the 6th Circuit. The Court's ruling came quickly as it heard arguments just last Friday in this closely watched case.