U.S. Supreme Court Strikes Down OSHA Vaccination Mandate

January 14, 2022

On January 13, 2022, the U.S. Supreme Court ruled that OSHA does not possess the statutory authority to implement the emergency order requiring employers with more than 100 employees to enforce a vaccine policy. The Court ruled the policy is “no ‘everyday exercise of federal power’ but instead a ‘significant encroachment into the lives – and health – of a vast number of employees.’”

On November 5, 2021, OSHA published an emergency standard (“ES”) requiring all employers with 100 or more employees to develop, implement, and enforce a mandatory COVID-19 vaccination policy.  Employers were required to mandate all employees be vaccinated, or that all employees be tested weekly and wear facemasks at work.  The Fifth Circuit Court of Appeals quickly issued a stay of the ES after finding that petitioners objecting to the ES had a substantial likelihood of prevailing on their lawsuits claiming that it exceeded the statutory authority of OSHA.  The Sixth Circuit then heard consolidated cases from all the federal circuits, and a three judge panel dissolved the Fifth Circuit’s stay, meaning that the mandate took effect on January 10, 2022. The petitioners sought emergency relief form the U.S. Supreme Court.

In finding the ES illegal, the U.S. Supreme Court noted that the OSH Act “empowers the Secretary (of Labor) to set workplace safety standards, not broad public health measures . . . and typically  speak to hazards that employees face at work.”   The Court noted that COVID-19 is not a danger limited to the workplace, but a universal danger, that can spread at home, in schools, and everywhere people gather and is no different than dangers like crime, air pollution, or other communicable diseases.  “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 Bottom Line

While private employers may legally impose their own rules with regard to vaccinations for COVID-19, and local governments may also seek to impose COVID-19 regulations on employers, the Department of Labor cannot impose a vaccination mandate on employers.  Accordingly, private employers are free from federal government mandates when determining how best to address and manage the threat that COVID-19 represents to their businesses.

Note that this ruling does not impact the interim rule for healthcare facilities, which requires that any healthcare facility that receives Medicare or Medicaid funds must ensure that their staff are vaccinated.