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Supreme Court Halts OSHA Vaccine ETS

The Supreme Court released a decision today granting a stay of OSHA's COVID-19 Vaccination and Testing ETS, meaning businesses will not have to comply with the rule while challenges proceed through the courts. In the case of NFIB v. OSHA, the Court reinstated the Fifth Circuit's stay, ruling that business groups are likely to prevail on their claim that OSHA’s mandate exceeds its statutory authority.


In a per curiam decision, meaning an opinion issued in the name of the Court rather than specific judges, the Court wrote that the regulation "operates as a blunt instrument," drawing no distinctions based on industry or risk of exposure to COVID–19. In granting the stay, the Court focused on the language of the OSH Act which allows for “emergency temporary standards" such as the regulation in question. The Court noted that OSHA is limited to regulating “work-related dangers,” and determined that while COVID– 19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. To illustrate this point, the Court wrote that "COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases."


In dissent, the court's liberal wing - Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan - wrote that the application for the stay was not likely to prevail under "any proper view of the law." The dissent further opined that the rule "perfectly" fits the language of the applicable statutory provision, noting that the ETS provision "commands—not just enables, but commands—" OSHA to issue an ETS where employees are exposed to grave danger and an ETS is necessary to protect employees from such danger. The dissent found that OSHA was acting within their statutory authority to prevent workplace harm.

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