UPDATE: On January 25, 2022, OSHA filed a notice withdrawing the Emergency Temporary Standard apart from the extent it serves as a proposed rule under the OSH Act.  For more details, click here.

On January 13, 2022, the U.S. Supreme Court, in a per curiam opinion, stayed OSHA’s Emergency Temporary Standard (“ETS”) mandating that employers with 100 or more employees require all employees to be fully vaccinated against COVID-19 or to wear face coverings and undergo weekly testing. Our summary of the ETS’s requirements is available here.

As we previously reported here, the ETS was initially stayed by the U.S. Court of Appeals for the Fifth Circuit. Challenges to the ETS were then consolidated before the U.S. Court of Appeals for the Sixth Circuit, and on December 17, 2021, a three-judge panel of the Sixth Circuit issued an order dissolving the Fifth Circuit’s stay. Multiple petitioners quickly filed emergency applications with the Supreme Court asking for the stay to be reinstated.

The Supreme Court held oral arguments on January 7, 2022.  Six days later, the Court stayed the ETS. Justice Gorsuch issued a concurring opinion, joined by Justices Thomas and Alito. Justices Breyer, Sotomayor, and Kagan issued a joint dissenting opinion.

The per curiam opinion held that the stay was appropriate because petitioners were likely to succeed on the merits of their claim that the Secretary of Labor lacked authority to impose the mandate. In support of this holding, the majority addressed several arguments that had been raised in support of the ETS by the Federal Government, including:

  • Holding that OSHA did not have the authority to issue the ETS because Congress did not plainly authorize the agency to implement a national vaccine-or-test mandate when it enacted the OSH Act. The Court emphasized that the OSH Act only provides OSHA the authority to enact occupational safety standards as opposed to general public-health measures such as a national vaccine-or-test mandate.
  • Holding that the risk of contracting COVID-19 at the workplace is not a “work-related danger” for most workplaces. The Court clarified that a “work-related danger” cannot be a universal risk that employees face in their ordinary day-to-day activities outside of work.
  • Rejecting the dissent’s assertion that the ETS is comparable to a fire or sanitation regulation. The Court emphasized that unlike such regulations, vaccination “cannot be undone at the end of the workday.”
  • Holding that OSHA may have the authority to regulate workplaces where COVID-19 poses a special danger due to the “particular features of an employee’s job or workplace.” The Court provided examples such as researchers who work with the COVID-19 virus or more generally workspaces that have crowed or cramped environments.
  • Rejecting the Government’s argument that the equities favor delaying the stay. The Court explained that it does not have the responsibility to decide whether the harms of staying the ETS outweighs the potential harm caused by the continued spread of COVID-19. The Court explained that the governmental bodies chosen by the people must decide those tradeoffs.

Justice Gorsuch wrote a concurrence, joined by Justices Thomas and Alito, in which he argued that the central question the Court faced is which entity should decide effective public-health policy for the country. He noted that the states and local authorities have historically held broad general powers to address issues of public health. By contrast, the Federal Government must invoke specific constitutional authority before regulating public-health matters. To that end, the concurrence argued that a federal agency making a decision of “vast economic and political significance” on issues of public health such as the ETS must have a clear delegation of authority from Congress, which OSHA did not.

Justices Breyer, Sotomayor, and Kagan issued a joint dissenting opinion, arguing that OSHA acted properly when it issued the ETS in response to the “grave danger” COVID-19 posed to workers around the country. The dissenting Justices argued that the ETS fits the statutory language of the OSH Act perfectly because the ETS addresses a “new hazard” as well as a “physically harmful agent” that poses a “grave danger” to employees. The Justices cited the millions of Americans affected by COVID-19, including the current surge in cases around the country, as evidence of the “grave danger” posed by the virus.

In a separate per curiam opinion, the Supreme Court denied several states’ applications to stay a vaccine mandate for health-care workers issued by the Centers for Medicare and Medicaid Services (“CMS”). The CMS vaccine mandate requires Medicare and Medicaid providers to establish policies for the vaccination of all eligible staff. Therefore, employers who are Medicare- and Medicaid-certified providers and suppliers must comply with the vaccination requirements for their particular business under the CMS vaccine mandate in order to continue participating in the Medicare and Medicaid programs.

We will continue to monitor and report on further developments regarding the ETS and the litigation regarding its implementation.

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Photo of Evandro Gigante Evandro Gigante

Evandro Gigante is a partner in the Labor & Employment Law Department and co-head of the Employment Litigation & Arbitration group and the Hiring & Terminations group. He represents and counsels clients through a variety of labor and employment matters, including allegations of…

Evandro Gigante is a partner in the Labor & Employment Law Department and co-head of the Employment Litigation & Arbitration group and the Hiring & Terminations group. He represents and counsels clients through a variety of labor and employment matters, including allegations of race, gender, national origin, disability and religious discrimination, sexual harassment, wrongful discharge, defamation and breach of contract. Evandro also counsels employers through reductions-in-force and advises clients on restrictive covenant issues, such as confidentiality, non-compete and non-solicit agreements.

With a focus on discrimination and harassment matters, Evandro has extensive experience representing clients before federal and state courts. He has tried cases in court and before arbitrators and routinely represents clients before administrative agencies such as the Equal Employment Opportunity Commission, as well as state and local human rights commissions.

Photo of Mark Harris Mark Harris

Mark Harris is head of the White Collar Defense & Investigations Group and co-head of the Appellate Group. Mark is also a former federal prosecutor and law clerk at the U.S. Supreme Court. An experienced white-collar criminal defense lawyer, he represents companies and…

Mark Harris is head of the White Collar Defense & Investigations Group and co-head of the Appellate Group. Mark is also a former federal prosecutor and law clerk at the U.S. Supreme Court. An experienced white-collar criminal defense lawyer, he represents companies and individuals in their most complex and difficult litigation matters.

Mark’s appellate cases span the gamut from intellectual property and labor relations to constitutional law and administrative law. Since 2017, Mark has represented the Financial Oversight and Management Board for Puerto Rico—the entity created by Congress to oversee Puerto Rico’s bankruptcy, the largest in American history—in dozens of appeals before the U.S. Court of Appeals for the First Circuit. In May 2023, he prevailed before the Supreme Court in an 8-1 decision that recognized the Board’s immunity from suit. He is a Fellow of the American Academy of Appellate Lawyers and a past American Lawyer Litigator of the Week.

Mark also maintains an active criminal docket in cases covering every form of financial crime and civil enforcement, including internal investigations. Clients draw on his experience as a former Assistant U.S. Attorney for the Southern District of New York, where he specialized in fraud cases and tried cases before federal juries. Mark is also a recognized expert on criminal sentencing, as a member of the Board of Editors of the Federal Sentencing Reporter, the leading legal journal devoted to the study of sentencing law and policy, for over 25 years.

Mark is the editor and lead author of Principles of Appellate Litigation: A Guide to Modern Practice (PLI Press), a comprehensive treatise on appellate practice, updated every year, which has been described as “invaluable,” “the product of deep experience and keen insights,” and “a superior appellate practice hornbook.”

He has lectured on both criminal law and appellate practice before the International Bar Association, the National Association of Criminal Defense Lawyers, PLI, and the ABA Sections of Litigation, Criminal Law, and Employment and Labor Law. Mark has been interviewed by Bloomberg Radio, the National Law Journal, WINS AM-1010, Law360Legal Times, and other news organizations.

Mark is a former clerk to U.S. Supreme Court Justices John Paul Stevens and Lewis Powell, Jr., and Judge Joel Flaum of the U.S. Court of Appeals for the Seventh Circuit. He is a graduate of Harvard College and Harvard Law School, where he was a member of the Harvard Law Review. He also serves on the Board of Trustees of the National Museum of Mathematics.

Photo of Lexie Reynolds Lexie Reynolds

Lexie Reynolds is an associate in the Labor & Employment Law Department, and a member of the Employment Law Counseling & Training, Employment Litigation & Arbitration, and the Discriminatory, Harassment, and Title VII Practice Groups. Lexie’s practice covers a wide range of matters…

Lexie Reynolds is an associate in the Labor & Employment Law Department, and a member of the Employment Law Counseling & Training, Employment Litigation & Arbitration, and the Discriminatory, Harassment, and Title VII Practice Groups. Lexie’s practice covers a wide range of matters with a focus on internal corporate and government investigations. She has represented private and public companies, boards of directors and their committees, and individuals across many different industries including entertainment, financial services, and technology.

Lexie has advised and assisted clients in a variety of internal investigations as well as government enforcement actions involving the DOL, DOJ, and SEC. She has litigated matters at the administrative, state, and federal level, including a federal court trial. She has experience in matters involving Title VII discrimination, fraud, whistleblower activity, and retaliation.

Lexie is also dedicated to pro bono work and has represented individuals at the state administrative, federal court, and appellate levels including matters involving discrimination, veteran benefits, and immigration. Additionally, she has volunteered her time each year to mentor middle school students in a mock trial program aimed at developing public speaking, self-confidence, and awareness of legal rights.

While in law school, Lexie litigated criminal matters, representing juvenile and adult individuals in state court. Additionally, she interned at the Boston Juvenile Court and the Massachusetts Office of the Child Advocate.

Photo of Raymond Arroyo Raymond Arroyo

Raymond Arroyo is an associate in the Labor Department and a member of the Employment Litigation & Arbitration Group.

During his time at Proskauer, Raymond has focused on a wide range of employment matters, including employment discrimination litigation, labor/management relations, and policies, handbooks…

Raymond Arroyo is an associate in the Labor Department and a member of the Employment Litigation & Arbitration Group.

During his time at Proskauer, Raymond has focused on a wide range of employment matters, including employment discrimination litigation, labor/management relations, and policies, handbooks and training, among others. Raymond has gained experience across a wide variety of industries including financial services, educational institutions, and sports.

Raymond earned his J.D. from Columbia Law School. While at Columbia, Raymond worked at the Center for Public Research and Leadership as a graduate assistant, providing consulting and strategic advice to educational institutions and organizations.  Raymond was also a staff editor for the Columbia Journal of Race and Law.

Prior to his legal career, Raymond was a Teach for America corps member and taught middle school in New York City.