COVID Mandate Stopped by the Supreme Court

On January 13, 2022 the U.S. Supreme Court halted the OSHA vaccine mandate. The mandate’s brief history began on September 9, 2021 when the President announced a plan to require more Americans to be vaccinated. This was followed by OSHA publishing an interim final rule issuing an emergency temporary standard (ETS). This ETS / vaccine mandate required certain employers to develop, implement and enforce a mandatory COVID-19 vaccination policy. In response, litigants around the country filed suit against OSHA to stop the mandate.

For a variety of complex legal reasons, the Fifth Circuit Court of Appeals put an indefinite hold on the mandate, an action which was reversed by the Sixth Circuit Court of Appeals, about a week later. The U.S. Supreme Court overturned the decision by the Sixth Circuit and stopped OSHA from implementing the vaccine mandate permanently.

What was the mandate?

The mandate required certain employers to develop, implement and enforce a mandatory COVID-19 vaccination policy, including retention of proof of fully vaccinated status of its employees. Alternatively, employers had the option of allowing employees to undergo COVID-19 testing once every seven days and to wear a facemask while working in lieu of requiring employees to be fully vaccinated. Willful violations of the mandate were punishable with a fine of up to $136,532.

To whom did it apply?

The OSHA vaccine mandate applied to employers with at least 100 employees, but specifically exempted employees who worked from home, employees who worked by themselves, employees or employees who worked exclusively outdoors.  

OSHA estimated that this mandate would have impacted 84.2 million workers. Based on the current COVID-19 vaccination rate in the United States, and the average age of workers, of the estimated 84.2 million workers projected to be impacted by the mandate, an estimated 52.5 million (62%) have already been vaccinated, and an estimated 31.7 million (38%) remain unvaccinated.  

Supreme Court’s Reasoning

In overturning the Sixth Circuit’s decision, the Supreme Court found that OSHA lacked the authority to impose such a mandate. OSHA was created to enforce standards that are necessary to provide healthy and safe employment, not to impose rules about health and safety in general.

Authority to make rules about safety and health in general belongs only to Congress, and if Congress wants to delegate that authority to an agency like OSHA, such authority must be specifically given. The Occupational Safety and Health Act that created OSHA grants general authority for workplace health and safety standards, not specific authority to address public health risks. OSHA has the authority to regulate workplace risks, but not risks that exist outside of the workplace. Although COVID-19 is a risk in many workplaces, it is not specifically a workplace risk in most workplaces, it is a general health risk, which makes it outside of OSHA’s authority.