Supreme Court Reinstates Stay of OSHA ETS

On January 13, 2022, the Supreme Court reinstated the stay against the OSHA Emergency Temporary Standard (ETS) for employers with 100 or more employees. The ETS requires employers that fit this criteria to implement a COVID-19 policy that either 1) requires employees to be vaccinated or 2) gives employees the option between being vaccinated or wearing a face covering and getting tested every seven days.

With this stay, PHTA member companies with 100 or more employees will not have to comply with the ETS standards for the time being.

First issued on November 5, 2021, the ETS has been faced with numerous legal challenges. On November 12, 2021, the 5th Circuit issued a nationwide stay against the ETS. The 6th Circuit lifted that stay on December 17, 2021, allowing the ETS to move forward. OSHA then announced that covered employers would be required to implement their policies by January 10, 2022.

The decision from the Supreme Court reinstates a temporary stay on the ETS pending its full review by the 6th Circuit or a full review by the Supreme Court if one is sought. In issuing the stay, however, the majority of the Supreme Court said it does not think OSHA has the authority to issue the standard, leaving doubts as to where OSHA could get this rule reinstated. From the Court’s majority opinion text, the Court justified its decisions by stating that although COVID-19 is a present risk in many workplaces, it is not an occupational hazard in most, and it is telling that OSHA has never before adopted a broad public health regulation of this kind to address a threat that is untethered from the workplace. The full decision can be read here.