On September 9, 2021, President Biden announced a “new plan to require more Americans to be vaccinated.” As part of that plan, the President said that the U.S. Secretary of Labor would issue an emergency rule to require all employers with at least 100 employees “to ensure their workforces are fully vaccinated or show a negative test at least once a week.” Two months later, the Secretary of Labor issued the promised emergency standard. After the federal Occupational Safety and Health Administration (OSHA) published the standard on November 5, 2021, scores of parties – including states, businesses, trade groups, and nonprofit organizations – filed petitions for review.
The consolidated cases made their way to the U.S. Supreme Court (USSC). Congress authorized OSHA to issue “emergency” regulations if OSHA determines that employees face grave danger from exposure to substances or agents determined to be toxic or physically harmful. Congress also gave OSHA the power to issue emergency standards as necessary to protect employees from such dangers. Despite that broad Congressional authority, the USSC’s 6-3 majority decision held that the OSHA rule exceeded its authority. The majority held the rule was a “broad public health measure” rather than a “workplace safety standard.” The USSC reinstated a stay of the OSHA vaccine or test rule.
Nat’l Fed’n of Indep. Bus. v. Dep’t of Lab., Occupational Safety & Health Admin., 142 S. Ct. 661 (2022).
Note:
In California, it remains to be seen whether the Occupational Safety and Health Standards Board (OSHSB), which disseminates workplace safety standards for employers in California, will adopt similar vaccination/testing requirements. Until OSHSB takes such an action, most employers in California will have discretionary authority to decide whether to require their employees to be vaccinated or tested for COVID-19. Employers may choose to mandate vaccinations for their employees, subject to their obligations to reasonably accommodate employees who are unable to be vaccinated due to disability or a sincerely held religious belief.