by Joshua B. Rosenzweig
On November 5, 2021, the Occupational Safety and Health Administration (“OSHA”) issued an Emergency Temporary Standard (“ETS”) concerning COVID-19 vaccination and testing. The ETS, more commonly known as OSHA’s “vaccination mandate,” prescribed vaccination, masking, and COVID-19 testing requirements for certain employers. After significant litigation, the United States Supreme Court stayed enforcement of the rule, telegraphing it would soon be struck down. As a result, OSHA withdrew its vaccination rule on January 25, 2022. This article surveys the rise and fall of OSHA’s vaccination measure.
OSHA’s ETS applied to employers with 100 or more employees (including part-time, minor, seasonal, and temporary employees) that were covered by the federal Occupational Safety and Health Act. These employers were required to establish, implement, and enforce one of two kinds of written policies: (1) a mandatory vaccination policy in which all employees must be vaccinated, subject to medical and religious exceptions, or (2) a policy allowing employees who are not fully vaccinated to undergo weekly testing as a prerequisite of coming to work.
The ETS also forced employers to ensure that non-vaccinated employees properly wear a face covering when indoors and when occupying a vehicle with another person for work purposes, except in limited circumstances. It additionally restricted employers from preventing an employee, customer, or visitor from wearing masks.
Moreover, the ETS imposed requirements on employees to provide prompt notification when they received a positive COVID-19 test or were diagnosed with COVID-19. In such situations, employers had to remove the infected employee—regardless of vaccination status—from the workplace until the employee received a negative test, met the CDC’s return to work criteria, or was allowed to return to work by a licensed healthcare provider.
Significantly, OSHA warned that failure to adhere to the ETS would have resulted in stiff penalties, which could have included monetary sanctions.
On November 6, 2021, the Fifth Circuit Court of Appeals (which covers Louisiana, Mississippi, and Texas) issued an order stopping the ETS from being implemented. The court later found that the ETS exceeded OSHA’s statutory authority, in that OSHA has no power to issue an ETS to address an airborne virus that is not particular to any workplace and non-life-threatening to most employees.
The case ultimately made its way to the United States Supreme Court. Although the question before the Court was whether the ETS should be allowed to go into effect while lower courts analyzed its validity, the Court took the opportunity to all but strike the rule down. The Court reasoned that OSHA had “ordered 84 million Americans to either obtain a COVID–19 vaccine or undergo weekly medical testing at their own expense,” which was in excess of the authority granted to it by Congress. In the Court’s words, OSHA has the power to “set workplace safety standards, not broad public health measures.” Thus, OSHA could not force all private employers to require COVID vaccination or testing.
However, the Court also acknowledged that OSHA did have authority to regulate COVID mitigation efforts in certain contexts. For instance, “risks associated with working in particularly crowded or cramped environments” are certainly within OSHA’s purview. But the rule, as drafted, clearly exceeded that standard. So, the Supreme Court found the ETS was all but doomed and should be stayed.
Approximately two-weeks later, OSHA withdrew the ETS. Presently, there is no federal vaccination mandate outside the context of health care. However, there is still a possibility that OSHA will reformulate and reissue its vaccination rule in a way that accords with the Court’s recent opinion. For this reason, employers should keep a lookout for more federal efforts to mandate COVID-19 vaccinations.