As we told you, earlier today, the Supreme Court majority (6-3) held that OSHA’s vaccine-or-testing rule (“OSHA ETS Rule”), 86 Fed. Reg. 61402 (Nov. 5, 2021) likely exceeded the agency’s power to regulate “occupational dangers” under the Occupational Safety and Health Act. Thus, the Court reimposed the “stay” preventing OSHA from enforcing the OSHA ETS Rule, including the portions of the rule that went into effect on January 10.
Following the Court’s decision, there was a question as to whether state OSHA plans (such as Minnesota) would move forward with attempts to enforce all or part of the OSHA ETS Rule. Hours ago, MN-OSHA answered that question by announcing that it was “suspend[ing] enforcement of the ETS pending future developments.”
Supreme Court Majority Holds OSHA ETS Rule Regulates “Public Health” (Not “Occupational Health”)
In a per curium opinion, the six-justice majority wrote that the OSHA ETS Rule painted with too broad a brush – attempting to regulate “public health” (instead of “occupational health”):
OSHA’s indiscriminate approach fails to account for this crucial distinction—between occupational risk and risk more generally—and accordingly the mandate takes on the character of a general public health measure, rather than an “occupational safety or health standard.”
. . .
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 majority did concede that OSHA could likely proceed with regulations that are more targeted to occupational risks associated with COVID-19. According to the majority:
Where the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are plainly permissible. We do not doubt, for example, that OSHA could regulate researchers who work with the COVID–19 virus. So too could OSHA regulate risks associated with working in particularly crowded or cramped environments.
In its current form, however, the majority noted that “most lifeguards and linemen face the same regulations as do medics and meat-packers.” Thus, according to the Court, preventing OSHA from enforcing its rule was necessary because the lower court will likely invalidate the rule.
Are Portions of the Rule Still In Place?
In its order, the Supreme Court “stay” is directed at the entire OSHA ETS Rule: “OSHA’s COVID–19 Vaccination and Testing; Emergency Temporary Standard, 86 Fed. Reg. 61402, is stayed pending disposition of the applicants’ petitions for review in the United States Court of Appeals for the Sixth Circuit and disposition of the applicants’ petitions for writs of certiorari, if such writs are timely sought.” Thus, there is no reason to think that any portion of the rule could be enforced by OSHA.
In an announcement posted on OSHA’s website, DOL Secretary Marty Walsh stated that he was “disappointed in the court’s decision” and promised that OSHA would be “evaluating all options to ensure workers are protected from this deadly virus.” Thus, while not admitting defeat, Secretary Walsh’s statement suggests that OSHA may be pivoting away from the OSHA ETS Rule and planning instead to issue more targeted OSHA standards that would seemingly be upheld under the majority’s analysis. But, at this point, we’ll have to wait and see.
What About State OSHA Plans?
As we noted earlier this week, the following states (including Minnesota) have “state OSHA plans” that apply to private-sector workers: Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, and Wyoming. As we told you, Minnesota’s state OSHA agency (“MN-OSHA”) adopted the OSHA ETS Rule on January 3 and began enforcing the rules on January 10.
However, in response to the Supreme Court’s decision, MN-OSHA announced that it was immediately suspending enforcement of the OSHA ETS Rule: “In light of the stay, MNOSHA will suspend enforcement of the ETS pending future developments.” The announcement is available here.
To date, it does not appear that any other state OSHA plans have adopted the federal OSHA ETS Rule (although California has adopted comprehensive standards regarding COVID-19). Thus, even assuming that they could legally do so (which is doubtful), it is unlikely that state OSHA plans have any plan to attempt such an effort.
Bottom Line
Given the Supreme Court’s decision and MN-OSHA’s announcement to cease enforcement, the OSHA ETS Rule appears to be done for good. But, it would be foolish to think that OSHA will not respond by issuing revised standards that are more targeted to the occupational risks identified by the Court’s majority.
Remember, too, the CMS vaccination mandate for healthcare workers was upheld by a slim majority of the Court and the same fate likely awaits the federal contractor vaccine mandate. We will provide additional details on these mandates as we unpack the Supreme Court’s decisions from today.
We will continue to monitor this issue as it develops.