US Supreme Court blocks vaccine mandate for large employers

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In a per curiam opinion released Thursday afternoon, the Supreme Court released long-awaited guidance on vaccine mandates issued by federal agencies.

The first, National Federation of Independent Business v. Department of Labor, involved the Emergency Temporary Standard (ETS) issued by the Occupational Safety and Health Administration (OSHA), which would have required employers with more than 100 employees to enact policies requiring employees to either be vaccinated or undergo weekly testing for COVID-19. The Court found in favor of the petitioners and stayed enforcement of the rule. The opinion issued the stay on the conclusion that such a rule goes grossly beyond OSHA’s authority to set workplace safety standards. The Court noted the ETS attempts to implement broad public health measures, rather than standards limited to the workplace.

A concurrence by Justices Gorsuch, Thomas, and Alito discussed the constitutional authority of the federal government, reasoning that the power to respond to the pandemic “rests with the States and Congress, not OSHA.” Justices Breyer, Sotomayor, and Kagan dissented on the basis that the holding usurped OSHA’s power as the federal agency responsible for workplace safety, opining that it was “acting well within the scope of [its] authority, to protect American workers from grave danger.”

Because of the holding, enforcement of the OSHA ETS, which began on January 10, is now stayed. The Court will rule on the substance of the rule at a later date. Given the Court’s reasoning in support of the stay, any future guidance by OSHA will not likely address mandatory vaccination, as the Court took specific issue with the vaccination requirement and how it expands beyond OSHA’s “occupational” authority. The agency still may be able to require other measures, such as testing, distancing, and masking in the workplace.

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