UPDATE: In an order issued Jan. 13, 2022, the United States Supreme Court stayed enforcement of federal OSHA’s COVID-19 Vaccination and Testing ETS pending the disposition of the petitions for review in the Court of Appeals for the Sixth Circuit. In light of the stay, MNOSHA will suspend enforcement of the ETS pending future developments.
Today, on January 13, 2022, the U.S. Supreme Court issued an order striking down the OSHA vaccine and testing ETS. This means that there is now no federal employer vaccine and testing requirement applying generally to private employers with 100 or more employees. However, there are still state and local requirements in key jurisdictions, including NYC, DC, and most notably for our purposes, Minnesota. The Court split 6-3, as predicted, on standard ideological grounds. Interestingly, the Order is per curium, which means there is no identified author.
The Court’s Ruling
The Supreme Court questioning at oral argument last week telegraphed that it was focused statutory and constitutional arguments and the underlying questions of who has the power to act, and who is the appropriate party to decide such issues. Thus it is not surprising that the Court struck down the ETS on the grounds that OSHA did not have the regulatory authority to issue the ETS. This conclusion mirrors that of the original Fifth Circuit decision striking down the ETS (before the Sixth Circuit reversed that decision). The Court’s ruling is also consistent with its recent skepticism for regulations issued by administrative agencies. The Bush/Clinton/Bush Supreme Court tended to defer to administrative agency actions; the Trump Supreme Court does not.
Next Federal Steps
OSHA has the ability to undertake a more formal rulemaking process and to modify its regulation to account for the Supreme Court’s ruling. Furthermore, because the Supreme Court’s ruling is preliminary, at least in theory, OSHA could continue to litigate the case, develop a better record supporting the ETS, and hope for a different outcome the second time around. But as a practical matter, neither of those options is likely to change the ultimate conclusion. As a result, it appears that the OSHA ETS is for all intents and purposes dead.
Crucially, the Supreme Court’s decision does not strike down any state or local vaccine requirements. As a result, employers should track those vaccine requirements and ensure that they comply with all state and local requirements. This will likely result in an explosion of similar requirements in blue states – essentially a repetition of what happened when the Trump administration withdrew or refused to enforce federal employment regulations, and blue states enacted their own patchwork, regulatory framework to fill the gap. Most notably, employers in Minnesota should be aware that Minnesota OSHA has adopted the same OSHA ETS standards and timeline. MNOSHA has yet to react to the Supreme Court decision, but has announced it would “react accordingly to further judicial determination as the current litigation makes its way through the process.” MNOSHA may seek to enforce its own requirement in the absence of any federal vaccine mandate. We therefore recommend that Minnesota employers ensure that they are compliant with the requirement as soon as possible, and in any event before February 9. We will continue to monitor developments. In the meantime, please reach out if you have any questions.