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U.S. Supreme Court Blocks OSHA’s Vaccination and Testing Emergency Temporary Standard

Client Alert


On January 13, 2022, the United States Supreme Court issued a 6-3 decision in National Federation of Independent Business v. Department of Labor ((2022) 595 U.S. ____) blocking the nationwide vaccination and testing mandate issued by the Department of Labor’s Occupational Safety and Health Administration (OSHA). In the highly anticipated decision, the Court held OSHA exceeded its authority in issuing the rule, reasoning OSHA is empowered “to set workplace safety standards, not broad public health measures.” In contrast, at the same time, the justices issued a 5-4 decision in Biden v. Missouri ((2022) 595 U.S. ____) granting the Biden administration’s request to be allowed to temporarily enforce a vaccine mandate for health care workers at facilities that receive federal funding.


On November 5, 2021, OSHA published an emergency temporary standard (ETS) related to the COVID-19 pandemic. The ETS required all private employers with 100 or more employees to require their employees to either be fully vaccinated against COVID-19 or undergo weekly testing and wear masks at work. The ETS was expected to cover 84 million workers.

Although OSHA generally regulates private sector employers, California has an OSHA-approved State Plan (Cal/OSHA) covering both private and state and local government workers. State Plans are monitored by OSHA and must be at least as effective as OSHA in protecting workers and preventing work-related injuries, illnesses, and deaths. After publication of the OSHA ETS, Cal/OSHA was required to notify OSHA within 15 days of how it planned to comply with the ETS, and was required to adopt the same or comparable standard within 30 days. However, opposition to the ETS came quickly.

Shortly following publication of the rule, businesses, states, and nonprofits filed petitions for review, with at least one petition filed in each regional Court of Appeals. The Fifth Circuit initially entered a stay on the ETS.  However, the cases were soon thereafter consolidated before the Sixth Circuit and that court lifted the stay allowing OSHA’s rule to take effect, holding that OSHA’s mandate was likely consistent with the agency’s statutory and constitutional authority.  After the stay was lifted, various parties filed applications in the U.S. Supreme Court requesting a stay.

Supreme Court Decision

After the case came to the Supreme Court in December 2021 on an emergency basis, the justices heard oral arguments on January 7, 2022 and issued a decision only six days later.  

In its decision, the Court addressed OSHA’s authority explaining that OSHA is tasked with ensuring occupational safety, which it does by enforcing occupational safety and health standards. These standards must be “reasonably necessary or appropriate to provide safe or healthful employment.” The Court stressed OSHA possesses only the authority that Congress has provided.

The Court ultimately held the ETS was not within this authority granted to OSHA and there was no clear congressional authorization. Citing to a recent decision, the Court wrote it expects Congress to “speak clearly when authorizing an agency to exercise powers of vast economic and political significance.” The Court stated, “Although congress has indisputably given OSHA power to regulate occupational dangers, it has not given the agency the power to regulate public health more broadly. Requiring vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees certainly falls in the latter category.” The Court reasoned OSHA has never adopted a similar broad public health regulation, which addresses a threat that is not specific to the workplace since COVID-19 is not a risk workers face due simply to being at work. The Court noted that targeted regulations may be permissible, but this mandate draws no distinctions based on industry or risk of exposure to COVID-19 and would expand OSHA’s authority significantly. The Court stayed the ETS.

Justices Breyer, Sotomayor, and Kagan provided a joint dissent stating that employees, “more than any others,” have “little control, and therefore little capacity to mitigate risk” from the spread of COVID-19. They argue the majority’s ruling “stymies the Federal Government’s ability to counter the unparalleled threat that COVID-19 poses to our Nation’s workers.”

What Does this Mean for Employers?

Employers should be aware that the decision regarding the ETS did not completely strike down the rule. The ETS will now return to the Sixth Circuit for a determination as to whether the ETS will be upheld. However, in staying the ETS, a majority of the Supreme Court found that the plaintiffs in the case are likely to be successful on the merits. This decision by the Court is likely to influence the Sixth Circuit’s decision. Notably, the ETS expires six months after issuance—or on May 5, 2022. Depending on how quickly Sixth Circuit moves, it may not issue a decision before the ETS expires.

As of now, this Supreme Court decision leaves states free to regulate employers with regard to COVID-19. Additionally, employers are also free to regulate their own employees with regard to COVID-19.  However, based on the Supreme Court’s reasoning, any employer-based mandatory vaccination/testing policy should specifically state how the mandatory vaccination/testing reduces COVID-19 health risks at the workplace more than the existing Cal/OSHA COVID-19 Prevention Emergency Temporary Standards (Cal/OSHA ETS), California Department of Public Health guidance, and other local regulations.  California employers should continue to follow the Cal/OSHA ETS originally effective in November of 2020 and most recently updated in December of 2021. The Cal/OSHA ETS does not currently include any mandates requiring employers to impose vaccination requirements.

For further information, please contact Pam Lee or Yecenia Vargas from Aleshire & Wynder, LLP’s Labor & Employment Practice Group at (949) 223-1170.

Disclaimer:  Aleshire & Wynder, LLP legal alerts are not intended as legal advice.  Additional facts or future developments may affect subjects contained herein.  Please seek legal advice before acting or relying upon any information in this communication.