Supreme Court rules against ETS but lifts CMS stay

On January 13, 2022, the U.S. Supreme Court issued two rulings addressing whether the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS) and the Centers for Medicare and Medicaid Services’ (CMS) healthcare worker vaccine mandate should be stayed. The Court granted a stay of the OSHA ETS, which means it ultimately will be struck down by the courts. In contrast, the Court ruled the CMS vaccine mandate could go into effect in 25 states where it had been barred.

OSHA ETS stay reinstated

In a strongly worded 6-3 per curiam majority opinion in NFIB v. OSHA, the Supreme Court reversed the 6th Circuit’s decision lifting the stay and ruled the U.S. Department of Labor (DOL) “lacked the authority to impose the mandate” because the Occupational Safety and Health (OSH) Act allows the secretary of labor “to set workplace safety standards, not broad public health measures.”

The Court was critical of the administration’s attempt to enact a public health measure through workplace regulations and stated that “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 did indicate, however, that “targeted regulations” would have been permissible “where the virus poses a special danger because of the particular features of an employee’s job or workplace.”