The Stay of the OSHA Emergency Temporary Standard for Large Employers has been Reinstated by the U.S. Supreme Court

Posted by Attorney David McClurg in COVID-19 / Comments

Reversing a December decision of the 6^th Circuit Court of Appeals, the U.S. Supreme Court, on Thursday, January 13, 2022, stayed enforcement of the Vaccination and Testing Emergency Temporary Standard (“ETS”) applicable to large employers with over one hundred employees. In reaching this decision, the Court found that the petitioners had demonstrated that OSHA was unlikely to be able to demonstrate that it had the authority to issue the ETS. The Court stated: “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 stay will be re-imposed while the merits of the challenges to the ETS are reviewed by the 6^th Circuit Court of Appeals.

However, in a related decision, The Supreme Court denied a request to stay enforcement of the vaccination mandate for workers in nursing homes, hospitals and other facilities that receive Medicare and Medicaid payments from the federal government.

Enforcement of President Biden’s Executive Order requiring that employees of all federal contractors certify that they have been vaccinated has also been stayed, and four separate Courts of Appeal are currently evaluating whether that nationwide stay should be lifted.