Legal Sidebari

Supreme Court Stays OSHA Vaccination and
Testing Standard
January 21, 2022
On January 13, 2022, the U.S. Supreme Court stayed the enforcement of the Occupational Safety and
Health Administration’s (OSHA’s) Coronavirus Disease 2019 (COVID-19) vaccination and testing
emergency temporary standard (ETS) for employers with 100 or more employees. The ETS generally
requires such employers to establish and enforce mandatory COVID-19 vaccination or testing policies. In
a per curiam opinion, the Court concluded that staying the implementation of the rule was justified
because the applicants, the National Federation of Independent Business and a coalition of States, were
likely to succeed on the merits of their claim that OSHA lacks the statutory authority to issue such a
standard. The Court maintained that the Occupational Safety and Health Act (OSH Act) authorizes the
agency to establish only workplace safety standards and not “broad public health measures,” which,
according to OSHA, would impact approximately 84.2 million employees. The Court indicated that,
although COVID-19 is a risk that occurs in many workplaces, if OSHA were allowed to regulate COVID-
19 when it is transmissible “at home, in schools, during sporting events, and everywhere else that people
gather,” it is not an occupational hazard in most workplaces and OSHA’s authority would be expanded
significantly without clear congressional authorization. This Sidebar provides an overview of the ETS and
the Court’s decision, and concludes with a few considerations for Congress following the Court’s stay.
The OSH Act and Emergency Temporary Standards
Congress enacted the OSH Act in 1970 to “assure so far as possible every working man and woman in the
Nation safe and healthful working conditions . . . .” The law seeks to reduce the frequency and severity of
work-related injuries and illnesses by promoting a “comprehensive, nationwide approach” to workplace
safety, and authorizes the Secretary of Labor to promulgate occupational safety and health standards to
protect workers. The Secretary has delegated this authority to the Assistant Secretary of Labor for
Occupational Safety and Health, who acts as OSHA’s administrator.
While OSHA’s safety and health standards generally do not become effective until the agency publishes a
proposed standard in the Federal Register and offers interested parties an opportunity to comment, the
OSH Act authorizes OSHA to promulgate ETSs that have immediate effect when specified conditions
exist. Section 6(c)(1) of the OSH Act, codified at 29 U.S.C. § 655(c)(1), authorizes OSHA to issue an
ETS that takes effect upon publication in the Federal Register if the agency determines that employees
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are exposed to “grave danger from exposure to substances or agents determined to be toxic or physically
harmful or from new hazards, and . . . that such emergency standard is necessary to protect employees
from such danger.”
In its November 5, 2021 Federal Register notice, OSHA explained that a COVID-19 vaccination and
testing ETS is appropriate because unvaccinated workers face a grave danger from exposure to COVID-
19 in the workplace. The agency contended that its grave danger finding was based on “the severe health
consequences associated with exposure to the virus along with evidence demonstrating the
transmissibility of the virus in the workplace and the prevalence of infections in employee populations[.]”
OSHA further indicated that vaccination provides the most effective and efficient control available to
unvaccinated workers, with regular testing, the use of face coverings, and the removal of infected
employees from the workplace also protecting workers who remain unvaccinated.
The COVID-19 vaccination and testing ETS generally requires employers with 100 or more employees to
establish, implement, and enforce a written mandatory vaccination policy. This policy requires employees
to be fully vaccinated, except those employees for whom a vaccine is medically contraindicated, those for
whom medical necessity requires a delay in vaccination, and those who are legally entitled to a reasonable
accommodation under federal civil rights laws because they have a disability or sincerely held religious
beliefs that conflict with the vaccination requirement. An employer may be exempt from maintaining this
type of policy if it establishes, implements, and enforces a written policy that allows an employee to
either be fully vaccinated against COVID-19 or provide proof of regular testing for COVID-19 and wear
a face covering when indoors or occupying a vehicle with another person for work purposes.
Under the ETS, testing for employees who are not fully vaccinated must occur at least once every seven
days for individuals who report at least once every seven days to a workplace where others, such as
coworkers or customers, are present. Employees who do not report to such a workplace during a period of
seven or more days must be tested within seven days prior to returning to the workplace. Employers are
required to maintain a record of each test result, but do not have to pay for any costs associated with
COVID-19 testing.
The ETS also requires covered employers to determine the vaccination status of their employees.
Employees are required to provide proof of vaccination status to their employers, and the employers must
preserve this proof and maintain a roster of each employee’s vaccination status. Employers are required to
support COVID-19 vaccination by providing up to four hours of paid time to each employee for each
primary vaccination dose, and must provide paid sick leave to employees who experience side effects
following any primary vaccination dose.
National Federation of Independent Business v. OSHA
Shortly after its publication in the Federal Register, the COVID-19 vaccination and testing ETS was
challenged in federal appellate courts across the country. On November 6, 2021, the U.S. Court of
Appeals for the Fifth Circuit temporarily stayed the ETS, pending further action by the court. The Fifth
Circuit reaffirmed its initial stay less than one week later in BST Holdings, L.L.C. et al. v. OSHA, stating:
“OSHA runs afoul of the statute from which it draws its power and, likely, violates the constitutional
structure that safeguards our collective liberty.”
In light of the other pending court challenges to the ETS, and consistent with 28 U.S.C. § 2112, which
sets forth the governing procedures when an agency order is challenged in more than one federal appellate
court, the ETS cases were consolidated for further consideration by the U.S. Court of Appeals for the
Sixth Circuit. On December 17, 2021, the Sixth Circuit dissolved the Fifth Circuit’s stay, recognizing
OSHA’s statutory authority to regulate viruses that are not unique to the workplace and refuting the
constitutional concerns raised by the ETS’s challengers.

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In National Federation of Independent Business v. OSHA, the Supreme Court considered two emergency
applications to stay the ETS following the Sixth Circuit’s decision. Unlike the Sixth Circuit, the Court
concluded that the OSH Act does not authorize the kind of COVID-19 regulations articulated in the ETS.
Discussing the transmissibility of COVID-19 everywhere people gather, the Court observed: “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 Court maintained that the OSH Act empowers the agency to establish
only workplace safety standards and not broad public health measures.
While the Court criticized the ETS’s breadth, it also indicated that OSHA could regulate occupation-
specific risks related to COVID-19:
Where the virus poses a special danger because of the particular features of an employee’s job or
workplace, targeted regulations are plainly permissible. We do not doubt, for example, that OSHA
could regulate researchers who work with the COVID-19 virus. So too could OSHA regulate risks
associated with working in particularly crowded or cramped environments.
According to the Court, this type of regulation would more appropriately address occupational risk rather
than a general risk of contracting the virus. The Court stayed the enforcement of the ETS pending
disposition of the appeal currently before the Sixth Circuit.
In a concurring opinion, Justice Neil Gorsuch, joined by Justices Clarence Thomas and Samuel Alito,
emphasized OSHA’s lack of authority to issue such a broad ETS. The concurring opinion explicitly
characterized the ETS as defying the “major questions” doctrine. The Court has previously explained that,
under this doctrine, Congress must speak clearly when authorizing an agency to regulate matters of
significant economic and political significance. Justice Gorsuch contended that OSHA sought to resolve a
“question of vast national significance” when it issued the ETS and that Congress “nowhere clearly
assigned so much power to OSHA.”
In a dissenting opinion, Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan maintained that the
ETS “perfectly fits” section 6(c)(1) of the OSH Act and that the standard is necessary to address COVID-
19’s dangers in the workplace. The dissenting Justices determined that, pursuant to section 6(c)(1), the
COVID-19 virus is both a “new hazard” and a “physically harmful” agent, and that the virus poses a
“grave danger” to millions of employees—a position that, according to the dissenters, was not disputed by
the Court. The dissenting Justices criticized the Court’s opinion for limiting OSHA’s regulatory authority
when the OSH Act permits regulating hazards that may exist both in and out of the workplace: “The
statute does not require that employees are exposed to those dangers only while on the workplace clock.
And that should settle the matter.”
Considerations for Congress
The comment period for the ETS, which also acts a notice of proposed rulemaking for a permanent
standard, remained open through January 19, 2022. As part of this notice-and-comment rulemaking
process, OSHA may consider the comments, as well as the Court’s decision, and issue a more narrowly
tailored permanent rule. Given the Court’s seeming approval of more targeted COVID-19 regulation, it
seems possible that OSHA could explore new requirements that focus on specific industries or risks in
particularly crowded workplaces. The agency may also opt to withdraw the ETS altogether. In response to
the Court’s decision in National Federation of Independent Business, Secretary of Labor Marty Walsh, in
a statement, expressed disappointment with the decision and stated that “[r]egardless of the ultimate
outcome of these proceedings, OSHA will do everything in its existing authority to hold businesses
accountable for protecting workers . . . .”
In National Federation of Independent Business, the Supreme Court concluded that the OSH Act does not
authorize OSHA to impose broadly a mandatory vaccination and testing policy for employers with 100 or

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more employees. Congress could clarify the scope of the relevant OSH Act provisions if it determines that
the Court’s interpretation does not appropriately reflect congressional intent and new federal action is
necessary to address the evolving pandemic. States may also consider new standards to protect employees
from workplace exposure to the virus. California, for example, adopted new standards that require
employers to, among other things, develop and implement a process for screening and responding to
employees with COVID-19 symptoms. The absence of federal COVID-19 workplace safety standards
could prompt more States to adopt similar requirements.

Author Information

Jon O. Shimabukuro

Legislative Attorney




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