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Supreme Court halts OSHA’s ETS on COVID-19

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Washington — The U.S. Supreme Court issued a stay of OSHA’s emergency temporary standard on COVID-19 vaccination, testing and masking, with a 6-3 decision Jan. 13.

The high court, which heard arguments on Jan. 7, sent the case back to the 6th U.S. Circuit Court of Appeals for a hearing on the merits of the ETS. That decision could lead to another appeal to the Supreme Court.

OSHA published the ETS in the Nov. 5 Federal Register, giving employers with 100-plus employees 30 days to develop, implement and enforce a mandatory COVID-19 vaccination policy – or provide a policy that gives workers the choice to get vaccinated or undergo weekly COVID-19 testing.

The 5th U.S. Circuit Court of Appeals issued a stay of that ETS on Nov. 12, but the 6th Circuit ended that stay with a 2-1 decision Dec. 17.

In re-issuing a stay, the Supreme Court’s majority contends that although COVID-19 “is a risk that occurs in many workplaces, it is not an occupational hazard in most.” The justices continue: “COVID-19 can and does spread at home, in schools, during sporting events and everywhere else that people gather. That universal risk is no different from the day-to-day dangers that all face from crime, air pollution or any number of communicable diseases.”

In their dissent, Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor note that people can choose to avoid places such as sporting events or restaurants, but many people have to go into a physical workplace and face the risk of exposure to COVID-19.

The majority opinion states that targeted regulations would be permissible, giving the examples of those concerning researchers who work with the virus that causes COVID-19 or employees who work in “particularly crowded or cramped environments.”

The justices write: “The danger in such workplaces differs in both degree and kind from the everyday risk of contracting COVID-19 that all face.”

Who has the authority?

One of the major issues of contention was whether Congress, in the Occupational Safety and Health Act of 1970, gave OSHA the authority to issue such an ETS.

Drawing from Section 6(c)(1) of the Act, the dissenters write that the ETS “falls within the core of the agency’s mission: to ‘protect employees’ from ‘grave danger’ that comes from ‘new hazards’ or exposure to harmful agents.”

The majority, meanwhile, writes that it expects Congress “to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.” The justices contend that Congress authorized safety standards for the workplace – not public health – and that the current Congress has enacted COVID-19 legislation but hasn’t charged OSHA with promulgating this ETS.

“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,” the majority opinion states.