How OSHA may respond to defeat of COVID-19 vaccine mandate

The Occupational Safety and Health Administration’s (OSHA) COVID-19 vaccine mandate for larger private employers may not be declared officially dead yet, but it’s certainly on life support after the U.S. Supreme Court recently stayed (or blocked) its enforcement. Read on to learn what lies ahead for OSHA’s emergency temporary standard (ETS) and, more important, how the agency may respond as well as what policies you should have in place as the pandemic continues.

ETS litigation going forward

OSHA’s ETS has been stayed, which means it’s on hold while the lawsuits challenging it play out in the lower federal courts. Theoretically, the Cincinnati-based U.S. 6th Circuit Court of Appeals could hold a full-blown trial and resurrect the ETS. That seems unlikely, however, because any decision would be appealed back to the high court. If five of the 6 justices who recently ruled for the stay remain on the bench, it’s inconceivable they would reverse their decision. The majority decision wrapped up by concluding:

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 into the latter category.

The Court’s sweeping conclusion was noteworthy for two reasons. First, it didn’t even leave the door ajar for OSHA to claim it has the authority to enact the ETS. Second, the statement was inaccurate.