- The U.S. Supreme Court issued a stay on the Occupational Safety and Health Administration's COVID-19 vaccination emergency temporary standard in a per curiam decision published Thursday.
- "OSHA has never before imposed such a mandate," the court said. "Nor has Congress. Indeed, although Congress has enacted significant legislation addressing the COVID–19 pandemic, it has declined to enact any measure similar to what OSHA has promulgated here." Associate Justices Neil Gorsuch, Samuel Alito and Clarence Thomas issued an opinion concurring in the decision while Associate Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan dissented.
- However, the court issued a separate per curiam opinion dissolving injunctions placed on a vaccination mandate for healthcare workers issued by the Centers for Medicare and Medicaid Services.
As several of the justices hinted during oral arguments on Jan. 8, the issue of whether to stay OSHA's ETS came down to the agency's statutory authority granted to it under the Occupational Safety and Health Act. Ultimately, the majority determined the ETS' challengers were likely to succeed on the merits of their claim that Secretary of Labor Marty Walsh lacks the authority to issue such requirements.
"This is no 'everyday exercise of federal power,'" the high court wrote, citing its own precedent stating that it expects Congress to "'speak clearly when authorizing an agency to exercise powers of vast economic and political significance.'" That refers to the court's major questions doctrine, which observers had speculated it might invoke.
In a statement Thursday, Walsh said he was "disappointed" with the court’s decision, calling it "a major setback to the health and safety of workers across the country." He noted that OSHA would continue to hold businesses accountable for protecting workers as part of its COVID-19 National Emphasis Program and under its General Duty Clause.
"We urge all employers to require workers to get vaccinated or tested weekly to most effectively fight this deadly virus in the workplace," Walsh said. "Employers are responsible for the safety of their workers on the job, and OSHA has comprehensive COVID-19 guidance to help them uphold their obligation."
Impact on construction
Associated Builders and Contractors, which had filed one of the emergency appeals to the Supreme Court against OSHA's ETS, applauded the court's decision in a statement.
"ABC is proud to have played an important role in preventing OSHA from causing irreparable harm to the construction industry," said Ben Brubeck, ABC's vice president of regulatory, labor and state affairs in the statement. "This is a big win in removing compliance hurdles for the construction industry, which is facing multiple economic challenges, including a workforce shortage of 430,000, rising materials prices and supply chain issues."
ABC continues to support vaccinations and encourages members to use its COVID-19 vaccination toolkit to keep workers safe on construction jobsites, he said.
Jessica E. Martinez, co-executive director of the National Council for Occupational Safety and Health, took the opposite stance, calling the decision "a deeply flawed opinion" that ignores both law and precedent.
"At a time when the COVID-19 virus is spreading faster than ever, workers will pay the price — with their very lives — for this wrong-headed decision by the Supreme Court," said Martinez. "… OSHA can and should still require employers to meet their legal and moral obligation to provide a workplace safe from known hazards, which certainly includes infectious diseases like COVID-19."
The ruling will leave the decision of whether or not to require vaccines in the workplace up to individual employers. For instance, PCL Construction said that it is committed to following the law and aims to "move in step" with industry standards.
The firm encourages employees who are able to do so to get the COVID-19 vaccine, but will not mandate vaccination within the company unless required by a client, according to Deron Brown, president and chief operating officer of PCL's U.S. operations.
"Many of our workers have voluntarily chosen to get the COVID-19 vaccine. Between voluntary vaccinations and other precautions such as mask wearing and handwashing, we've so far been able to safely continue to operate our projects," Brown said in a statement shared with Construction Dive. "Without question, this is a divisive issue in the industry, and we sincerely respect the opinions of employees on both sides of the issue. However, we hold an ethical obligation to follow the law on our jobsites."
Generally, management-side attorneys who spoke to HR Dive said they were not shocked by the outcome. "I can't say I was surprised by the decision," said Melissa Bailey, shareholder at Ogletree Deakins. "I think the writing was on the wall given some of the questions the justices asked."
But the OSHA ETS ruling is notable in that a more tailored standard from the agency could be viewed more favorably by the justices, according to Sean Marotta, partner at Hogan Lovells. It remains unclear how expansive such a standard would be, he added.
For the moment, employers should note that "it's back on them to decide whether they want to have a vaccine mandate," Marotta said. "They unfortunately can't rely on OSHA for uniformity."
Employers should still be mindful that they may be subject to certain executive orders or requirements instituted by state OSHA plans, said Catherine Barbieri, co-chair of Fox Rothschild's national labor and employment department. For example, Minnesota's state OSHA, MNOSHA, had adopted the federal ETS but announced Thursday that it would suspend enforcement pending future developments.
Mary Salmonsen contributed to this report.