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The Supreme Court Blocks OSHA’s ETS

By Benjamin Orsatti, Esq., Associate General Counsel & Senior HR Consultant, East Coast Risk Management

The United States Supreme Court has blocked enforcement of OSHA’s COVID-19 vaccination-or-weekly-testing-and-masking mandate for businesses with 100 or more employees, while leaving a similar mandate in place for health care facilities receiving Medicare and Medicaid funds.

In its January 13, 2022 opinion, the Court explained that OSHA likely “exceeded its statutory mandate” when fashioning the COVID-19 “Emergency Temporary Standard” (ETS), but what does that mean, exactly?  Here’s a quick civics lesson:  All Federal law ultimately derives from the United States Constitution.  If the Constitution doesn’t let the Federal Government make laws about a particular “thing,” say, commerce, education, or plaid shirts, then it’s up to the individual states (or radio talk show hosts) to make the rules about that particular “thing.”

Here, we have the “Occupational Safety and Health Act” of 1970, which, simply put, is meant to ensure “safe and healthful working conditions.”  §651(b).  Does the Constitution let Congress pass such a law?  It does.  Article 1, Section 8, Clause 3 of the Constitution (known as the “Commerce Clause”) gives Congress the power “to regulate commerce […] among the several states.”  So, if your business is operating in “interstate commerce,” then the OSH Act applies to you!

But, the vaccination mandate (ETS) is not a statute passed by Congress, it’s a rule conjured up by the Department of Labor.  Rules don’t get the same Constitutional protection that laws do because the “separation of powers” doctrine holds that Congress makes the laws, the Executive branch (which includes the President and the Department of Labor / OSHA) enforces the laws, and the Supreme Court interprets the laws.  In other words, the Executive Branch (i.e., OSHA), because it’s supposed to be enforcing laws and not making new ones, can only do what the statute says it can do, and no more.  That’s why the police (also part of the Executive branch at the state level) can pull you over for speeding but can’t make up a law on the spot and arrest you for wearing a plaid shirt that the officer finds distasteful.

The OSH Act permits OSHA to ensure “safe and healthful working conditions” by “enforcing occupational safety and health standards promulgated by the Secretary [of Labor].”  It can do so only if those standards are “reasonably necessary or appropriate to provide safe or healthful employment” and if the Rules and mandates they want everybody to abide by are “developed using a rigorous process that includes notice, comment, and an opportunity for a public hearing.”  In other words, “We the People of These United States” are supposed to have a say-so before any of these rules can be enforced.

And that was where OSHA went wrong.  What they did instead was to say – “this vaccination mandate isn’t a ‘regulation,’ which would require public notice and comment, it’s an ‘emergency temporary standard,’ which doesn’t.”  §655(c)(1).

“Ah, but not so fast,” says the Supreme Court, “it’s only an ‘emergency temporary standard’ if: (1) employees are in ‘grave danger’, and (2) the ETS is necessary to protect those employees from that ‘grave danger’”.  This particular ETS is not.  It is, as the Supreme Court held, a “blunt instrument,” and continued (with masterful alliteration!): “most lifeguards and linemen face the same regulations as do medics and meat-packers.”  Speaking of which, the “meat” of the Court’s opinion is probably:

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. 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. 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.

So, for the folks at OSHA, it’s back to the drawing board; for private employers and federal contractors (whose own ETS is still presently “on hold”), you’re currently left on your own to decide what’s best for your work force.  For facilities that receive Medicare and Medicaid, you’re still stuck with your own ETS, but that is a story for a different day.

One last caveat … this ruling only affects the OSHA ETS. If you’re in a state with an OSHA State Plan, you should continue to keep an eye out for state OSHA requirements.

Also, Marty Walsh, Secretary of Labor, made the following statement in response to the Supreme Court’s decision: “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.”

If you are an employer with questions about any issue relating to safety, human resources, or workers’ compensation, contact East Coast Risk Management by calling 724-864-8745 or sending an email to at

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