The Supreme Court’s decision blocking implementation of OSHA’s COVID-19 vaccine-or-test emergency temporary standard (ETS) holds that the economy-wide rule is too broad to fit within the agency’s authority to regulate “occupational safety,” but also provides a roadmap for more targeted limits that could survive judicial review.
The Supreme Court has reinstated a nationwide stay of OSHA’s emergency temporary standard (ETS) for COVID-19 vaccination, holding that challengers to the rule are “likely to succeed on the merits” of their claims because the rule is broad enough to qualify as a “public health” mandate rather than an occupational standard.
The Occupational Safety and Health Review Commission (OSHRC) appears to be raising the bar for rejecting employers’ appeals of OSHA enforcement actions when they miss litigation deadlines or otherwise fail to follow required procedures, holding in a new order that appellants must be allowed to show a “good faith effort” at participating in proceedings.
Observers on all sides expect the Supreme Court to stay implementation of OSHA’s COVID-19 vaccine-or-testing standard in the coming days, leaving many employers uncertain on how to move forward after its first compliance deadline arrived on Jan. 10, especially as OSHA has yet to act on requests for extensions -- including from the Postal Service.
Conservative Supreme Court justices appeared to doubt OSHA’s authority to issue its COVID-19 vaccine-or-testing emergency temporary standard (ETS), with several questioning whether Congress could have foreseen situations like the current pandemic when it wrote the OSH Act, and others asking if the standard is truly necessary to fight the coronavirus.
Public health groups are asking a federal appeals court to resume their lawsuit over OSHA’s 2019 rollback of Obama-era electronic recordkeeping and reporting mandates, after the agency failed to propose restoring the rule by the end of 2021 as it promised in an earlier filing -- though it now says the proposal will arrive by mid-February.
State and national labor groups are asking a federal appeals court for an order that would force OSHA to reinstate its COVID-19 emergency temporary standard (ETS) for healthcare workers and quickly enact a permanent rule for the sector, teeing up what could be the first appellate decision on the agency’s ability to extend the six-month emergency regulations.
As the Supreme Court prepares to hear oral argument in challenges to OSHA’s COVID-19 vaccine-or-test emergency temporary standard (ETS) and the Center for Medicare and Medicaid Services (CMS) mandate for health workers, legal experts say its decision could set new precedent curbing OSHA and other agencies’ regulatory authority.
OSHA has confirmed that it is withdrawing most of its COVID-19 emergency temporary standard (ETS) for healthcare facilities but says it still plans a permanent rulemaking for the sector and will continue enforcement action in the interim under the OSH Act’s general duty clause.
The Supreme Court announced Dec. 22 that it will hear oral argument Jan. 7 in litigation over both OSHA’s vaccine-or-test emergency temporary standard (ETS) for large employers and the Centers for Medicare and Medicaid Services (CMS) vaccine mandate for many health workers, linking the two high-profile challenges to federal pandemic powers.