On January 13, 2022, the Supreme Court of the United States (SCOTUS) ruled against the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS) that required employers with 100+ employees to require COVID-19 vaccination or weekly testing. The 6-3 opinion was made primarily based on OSHA’s scope and duties, meaning they lack authority to issue such a requirement.
“COVID-19 is a Public Health Concern, Not a Unique Work Hazard”
While there was clear acknowledgment that COVID-19 is a risk that occurs in many workplaces, the Court said it does not qualify as 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.”
However, giving OSHA authority to regulate the hazards of daily life is beyond their current congressional authorization. Changing this would require a delegation from Congress, but that “would dash the whole scheme of our Constitution.”
Furthermore, the ETS addresses public health generally and “draws no distinctions based on industry or risk of exposure to COVID-19.” Because OSHA’s purpose is to ensure occupational safety, this falls outside of OSHA’s scope and expertise.
Some Workplaces Do Fall Under OSHA Scrutiny to Require Vaccine Mandate
There are, however, distinctions for specific workplaces to implement a vaccine mandate, such as healthcare workers, researchers working with the COVID-19 virus, and employees who work in crowded or cramped environments. In these situations, the degree and kind of risk differ from the general everyday risk of contracting COVID-19.
As such, the Court permitted the HHS ruling for healthcare workers in a separate opinion to protect patient health and safety, which fits within the language of the statute. “A COVID-19 vaccine mandate will substantially reduce the likelihood that healthcare workers will contract the virus and transmit it to their patients.”
States and Congress, Not OSHA, Hold the Power for Creating a General Mandate
At the end of the day, this decision was not for SCOTUS to weigh cost (billions of dollars in compliance costs and hundreds of thousands of workers from leaving their jobs) vs reward (potentially saving thousands of lives and preventing hundreds of thousands of hospitalizations). “Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly.” As the law stands today, it only gives States and Congress the power to enact necessary measures to respond to the pandemic.
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