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January 15, 2022: Written by: Christopher M. Leddy, Esq., Partner

The United States Supreme Court has acted to stay OSHA’s shot-or-test mandate for private employers, pending the disposition of the petitions for review by the Sixth Circuit. The Supreme Court explained the mandate was not a normal exercise of power by OSHA, but rather “a significant encroachment into the lives—and health—of a vast number of employees” and that the Occupational Safety and Health Act does not authorize such a mandate. Specifically, “[t]he Act empowers the Secretary to set workplace safety standards, not broad public health measures.” In reaching its conclusion the Supreme Court reasoned:

“Although COVID–19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases. 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…”

“That is not to say OSHA lacks authority to regulate occupation-specific risks related to COVID–19. Where the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are plainly permissible. We do not doubt, for example, that OSHA could regulate researchers who work with the COVID–19 virus. So too could OSHA regulate risks associated with working in particularly crowded or cramped environments. But the danger present in such workplaces differs in both degree and kind from the everyday risk of contracting COVID–19 that all face. OSHA’s indiscriminate approach fails to account for this crucial distinction—between occupational risk and risk more generally—and accordingly the mandate takes on the character of a general public health measure, rather than an ‘occupational safety

or health standard.’”

In sum, OSHA’s shot-or-test mandate is back on hold, with employers, at this time, no longer having to fear the risks and penalties associated with non-compliance, which could have been (and may still be in the future) quite steep.

The full opinion of the Supreme Court, including the dissent, can be found here:

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