The Supreme Court’s decision to block OSHA’s vaccinate-or-test emergency temporary standard (ETS) that would have covered roughly 84 million workers ended a months-long back and forth that pitted state governors and legislators against federal OSHA. With the dust settled, let’s take a look at the immediate impact of the decision, how the high court’s ruling may affect OSHA standards in the future and potential next steps for employers seeking to protect workers from COVID-19.

First and most importantly, private employers with over 100 workers no longer have to ensure their workers are vaccinated against COVID-19 or tested weekly. However, even with the Supreme Court ruling, in most states it’s still legal for employers to require vaccination as a condition of employment. Given the Supreme Court ruling, it may seem counterintuitive that vaccine mandates are still legal at all. The central issue in the ruling wasn’t over the legality of mandates, but whether OSHA overstepped its authority to regulate workplace health and safety.

The Supreme Court’s Arguments in Blocking the ETS

In its decision to block the ETS, the Supreme Court acknowledged OSHA’s authority to set workplace safety standards, but viewed the scope of the ETS as so broad that it was effectively a public health standard. This issue of occupational health vs. public health is the first major reason why the court ultimately blocked the standard.

According to the court, “permitting OSHA to regulate the hazards of daily life – simply because most Americans have jobs and face those same risks while on the clock – would significantly expand OSHA’s regulatory authority without clear congressional authorization.” The court’s view is that the power to make public health decisions, especially ones that have such broad economic impact, rests with Congress and individual states, not with OSHA.

Had the scope of the standard been more narrow or targeted towards certain workplaces, the outcome may have been different. The Supreme Court acknowledged as much in its written opinion:

“Where the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are plainly permissible. OSHA [could] regulate risks associated with working in particularly crowded or cramped environments. OSHA’s indiscriminate approach fails to account for this crucial distinction – between occupational risk and risk more generally – and accordingly the mandate takes on the character of a general public health measure.”

The other major reason behind the high court’s decision to block the ETS centered around the nature of COVID-19 itself – namely that the virus isn’t solely a hazard in the workplace. The Supreme Court highlighted this several times in its decision, noting that “although COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID-19 can and does spread at home, in schools, during sporting events and everywhere else that people gather.”

Problems with the Supreme Court’s Arguments

It’s estimated that unvaccinated people are 15 to 20 times more likely to die from COVID-19, so there’s little doubt the ETS would have saved lives. However, that wasn’t the issue up for debate by the Supreme Court. The court’s view is that for most people, the risk from COVID-19 is similar at work and away from work. While there’s some truth to that view given the airborne transmissibility of COVID-19, home life and work life differ in one very important way.

When it comes to attending restaurants, social events, sporting events or traveling, we all have some level of choice. We can decide whether the benefits of attending outweigh the potential risks. If we go out to dinner and the circumstances are different than we expected – the restaurant is packed with people, for example – we can choose to leave and eat somewhere else.

That isn’t the case with work. For the majority of Americans, if they want to get paid, they have to show up to work. And once they’re at work, they have very little control over the work environment. Workers can’t show up and look around, then decide the place is too crowded and go work somewhere else that day. At work, workers can only do so much to limit interactions with coworkers or customers, even if those people are unvaccinated or recently exposed to COVID-19 and haven’t had a negative test.

The Supreme Court justices who blocked the ETS, however, didn’t have to worry about these problems in their own workplace. In a clear example of hypocrisy, the lawyers and reporters in the courtroom were mandated to test negative for COVID-19 and wear masks when they weren’t speaking. If the Justices didn’t feel comfortable being there in person, they could choose to listen to arguments remotely. If only more workers had these same rights and privileges to protect their own health at work. Instead, the Supreme Court’s message was like that of a parent to a young child: “do as I say, not as I do.” Now most workers in the U.S. will have to rely on their employer choosing to implement or maintain policies to protect their health.

Next Steps for OSHA and Employers

Responding to the Supreme Court’s decision, Secretary of Labor Marty Walsh assured employers that, “regardless of the ultimate outcome of these proceedings, OSHA will do everything in its existing authority to hold businesses accountable for protecting workers, including under the COVID-19 National Emphasis Program and general duty clause.”

Given that response, it seems unlikely OSHA will attempt to issue a narrower version of the vaccinate-or-test ETS, especially after letting the separate ETS for the healthcare industry expire. Instead, federal OSHA will focus compliance efforts around the general duty clause, citing employers that don’t make good faith efforts to comply with current OSHA guidelines to stop the spread of COVID-19. Unfortunately, this puts employers in the same difficult position they were in prior to the ETS, where it’s unclear exactly what steps equal compliance under the general duty clause.

Employers do still have the legal authority to require vaccination and implement policies such as regular testing, mask wearing, physical distancing and the reporting of COVID-19 symptoms. For additional information on how to protect your workforce from COVID-19, see the Fund’s COVID-19 Resources page or contact us with specific questions.

[Nick Fox]