January 14, 2022 — In a highly anticipated and controversial 6-3 decision, the U.S. Supreme Court yesterday temporarily struck down the Biden Administration's plan to implement a new COVID-19 Vaccination and Testing Emergency Temporary Standard. The ETS was set to go into effect next week for all businesses with 100 or more employees.
Even as new Coronavirus cases continue to surge nationwide via the new Omicron variant, the high court reinstated a lower court stay on the U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) ETS that had been issued Nov. 5. President Joe Biden had announced the new ETS in September in response to the then-surging Delta variant.
Among the plaintiffs who had opposed the federal mandate was Associated Builders and Contractors, which filed one of the emergency appeals to the Supreme Court in December that led to this week's ruling. “ABC is pleased that the Supreme Court blocked OSHA’s COVID-19 Vaccination and Testing ETS,” said Ben Brubeck, ABC vice president of regulatory, labor and state affairs. “ABC is proud to have played an important role in preventing OSHA from causing irreparable harm to the construction industry."
He added, "This is a big win in removing compliance hurdles for the construction industry, which is facing multiple economic challenges, including a workforce shortage of 430,000, rising materials prices and supply chain issues. ABC continues to support vaccinations and encourages members to use its COVID-19 vaccination toolkit to keep workers safe on construction jobsites.”
On Nov. 9, ABC and its Alabama chapter had filed a petition for review with the U.S. Court of Appeals for the 11th Circuit against the OSHA ETS. ABC filed an emergency appeal to the Supreme Court to stay the ETS on Dec. 20.
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In yesterday's majority opinion, the Supreme Court's conservative justices wrote:
"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."
In dissent, the high court's three liberal justices answered:
"In the face of a still-raging pandemic, this court tells the agency charged with protecting worker safety that it may not do so in all the workplaces needed. As disease and death continue to mount, this Court tells the agency that it cannot respond in the most effective way possible. Without legal basis, the Court usurps a decision that rightfully belongs to others."
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In a separate 5-4 ruling also issued by the Supreme Court yesterday, the court lifted injunctions that had been issued against the CMS vaccination mandate applicable to health care institutions and their suppliers and contractors.
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U.S. Secretary of Labor Marty Walsh issued the following statement on the Supreme Court ruling:
“I am disappointed in the court’s decision, which is a major setback to the health and safety of workers across the country. OSHA stands by the Vaccination and Testing Emergency Temporary Standard as the best way to protect the nation’s workforce from a deadly virus that is infecting more than 750,000 Americans each day and has taken the lives of nearly a million Americans.
“OSHA promulgated the ETS under clear authority established by Congress to protect workers facing grave danger in the workplace, and COVID is without doubt such a danger. The emergency temporary standard is based on science and data that show the effectiveness of vaccines against the spread of coronavirus and the grave danger faced by unvaccinated workers. The commonsense standards established in the ETS remain critical, especially during the current surge, where unvaccinated people are 15-20 times more likely to die from COVID-19 than vaccinated people. OSHA will be evaluating all options to ensure workers are protected from this deadly virus.
“We urge all employers to require workers to get vaccinated or tested weekly to most effectively fight this deadly virus in the workplace. Employers are responsible for the safety of their workers on the job, and OSHA has comprehensive COVID-19 guidance to help them uphold their obligation.
“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.”
In his own statement, President Biden added:
"Today’s decision by the Supreme Court to uphold the requirement for health care workers will save lives: the lives of patients who seek care in medical facilities, as well as the lives of doctors, nurses, and others who work there. It will cover 10.4 million health care workers at 76,000 medical facilities. We will enforce it.
"At the same time, I am disappointed that the Supreme Court has chosen to block common-sense life-saving requirements for employees at large businesses that were grounded squarely in both science and the law. This emergency standard allowed employers to require vaccinations or to permit workers to refuse to be vaccinated, so long as they were tested once a week and wore a mask at work: a very modest burden. As a result of the Court’s decision, it is now up to States and individual employers to determine whether to make their workplaces as safe as possible for employees, and whether their businesses will be safe for consumers during this pandemic by requiring employees to take the simple and effective step of getting vaccinated.
"The Court has ruled that my administration cannot use the authority granted to it by Congress to require this measure, but that does not stop me from using my voice as President to advocate for employers to do the right thing to protect Americans’ health and economy. I call on business leaders to immediately join those who have already stepped up – including one third of Fortune 100 companies – and institute vaccination requirements to protect their workers, customers, and communities.
"We have to keep working together if we want to save lives, keep people working, and put this pandemic behind us."
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