ILTA Monthly Newsletter

Supreme Court Reinstates Stay on President Biden’s COVID-19 ETS

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On January 13, the Supreme Court ruled on the ongoing legal battle over President Biden’s wider COVID-19 emergency temporary standards. The nine Justices issued a per curiam decision, reinstituting a stay of OSHA’s ETS.

A per curiam decision is a court opinion issued in the name of the Court rather than specific judges, but it is certainly not an indication that the decision was unanimous or non-controversial. There was also a concurrence by Justice Gorsuch (joined by Justices Thomas and Alito), and a joint dissent by Justices Breyer, Sotomayor, and Kagan.

While the decision technically is only a temporary stay of the ETS pending a full review of the legal challenges to the rule by the Sixth Circuit, the Court’s conservative justices sent an unmistakable signal that the High Court conservative majority believes OSHA exceeded its statutory authority in issuing a workplace standard to address an issue of broad public health. The three progressive justices issued a scathing dissent, essentially charging that a stay would result in the loss of tens of thousands of lives to COVID-19.

To be clear, the Supreme Court’s decision to reinstitute a stay of the federal OSHA vaccinate-or-test ETS technically affects only the federal rule. Since the basis on which the Court struck down the federal ETS was the Major Questions Doctrine, the decision relates only to OSHA’s authority to regulate without a clearer delegation from the Congress. That principle is only applicable to federal OSHA, the Federal OSH Act, and the US Congress. It would not be applicable to any State OSH Plan that would have its regulatory authority arising out of a state statute. To be clear, without a fed OSHA ETS on the books, the State Plans will not be compelled to issue their own versions of a vaccination ETS, but this ruling by the Supreme Court does not block them from doing so on their own accord.


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