OSHA Vaccine ETS at the Supreme Court

On January 7, 2022, The Supreme Court of the United States (the “Court”) heard oral arguments on whether to put a hold on the Occupational Safety and Health Administration (“OSHA”)’s Emergency Temporary Standard (“ETS”) COVID-19 Vaccine Mandate for employers with 100 or more employees.

Today, the Court issued an opinion putting the OSHA ETS mandate on hold while the litigation continues in a lower court. Effectively, this decision puts an indefinite pause on the “vaccine or test” requirement for employers with 100 or employees. The Court determined OSHA had exceeded its authority and held: “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. Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category.”

MNOSHA adopted the OSHA ETS mandate by reference on January 3, 2022. MNOSHA announced today that in light of the Court’s decision, it would suspend enforcement of the ETS pending future developments. As a result, employers have much greater discretion in determining the right approach for their particular situation. Those employers who had previously issued a policy as a result of the ETS should revisit that policy and determine what works best for their particular circumstances.

We will continue to monitor this issue and the next steps taken by state and local authorities. If you have questions regarding the above or any other employment-related concerns, please contact Martin Kappenman at mkappenman@prkalaw.com or Richard Sharp at rsharp@prkalaw.com.