WASHINGTON – The Supreme Court on Jan. 13 blocked an emergency temporary standard (ETS) for COVID-19 vaccines and testing for companies with 100 or more employees. The Occupational Safety and Health Administration (OSHA) issued the ETS in November 2021.

Stakeholders across industries applauded the high court’s ruling.

“We are pleased the Supreme Court recognized the challenges OSHA’s rule would have imposed on food retailers and manufacturers, our employees and, ultimately, American consumers,” said Leslie G. Sarasin, president and chief executive officer of FMI – The Food Industry Association. “The Court’s decision today to pause OSHA’s vaccine and testing mandate for private businesses will help ensure the food industry is able to continue meeting our customers’ needs as efficiently and effectively as possible amid the ongoing supply chain and labor disruptions.

“FMI and our member companies remain committed to working with OSHA, the CDC, and the White House to encourage and facilitate vaccinations among our employees and communities while preserving our members’ ability to provide their customers with the foods and products they need to keep their families fed and safe in the new year,” Sarasin said.

The National Grocers Association (NGA) supported the Supreme Court’s ruling to suspend enforcement of the COVID-19 vaccination and testing mandate.

“Independent grocers remain focused on doing what they have done since day one of the pandemic, providing their communities with access to food, essential products and other vital services,” said Greg Ferrara, NGA president and CEO. “The ruling is a great relief for our industry as it staves off a burdensome mandate that would have created further disruptions and impaired our members’ ability to properly serve the needs of their communities.”

The Missouri Chamber of Commerce said its position is simple — let business decide.

“The Missouri Chamber had strongly pushed back against the Biden administration’s plan, arguing that employers should continue to have the right to establish vaccine policies for their own businesses,” the organization said. “This is a win for supporters of free enterprise. But meanwhile, some lawmakers in Missouri continue to push anti-business bills that would override employer policies regarding COVID-19 vaccines.”

Six justices ruled in favor of delaying implementation and enforcement of the ETS while three voted against a stay. An unsigned majority opinion said that OSHA lacked the authority to impose the mandate. He said the Occupational Safety and Health Act tasks the Secretary of Labor to set workplace safety standards, not public health measures.

“Administrative agencies are creatures of statute,” the majority opinion said. “They accordingly possess only the authority that Congress has provided.”

The majority opinion went on to say that 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,” the majority opinion stated. “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.”

In a dissenting opinion, Justices Steven G. Breyer, Sonya Sotomayor and Elena Kagan argued that the Occupational Safety Act authorizes OSHA to protect employees from all hazards present in the workplace “…or, at least, all hazards in part created by conditions there” regardless of whether the hazards also exist outside the workplace.

“Congress knew — and Congress said — that OSHA’s responsibility to mitigate the harms of COVID–19 in the typical workplace do not diminish just because the disease also endangers people in other settings,” the justices said. “If OSHA’s Standard is far-reaching — applying to many millions of American workers—it no more than reflects the scope of the crisis.

“The Standard responds to a workplace health emergency unprecedented in the agency’s history: an infectious disease that has already killed hundreds of thousands and sickened millions; that is most easily transmitted in the shared indoor spaces that are the hallmark of American working life; and that spreads mostly without regard to differences in occupation or industry.”

The emergency temporary standard required employers to develop, implement and enforce a mandatory COVID-19 vaccination policy, or adopt a policy requiring employees to choose vaccination or regular COVID-19 testing and wearing a mask while at work. The ETS also required employers to provide paid time to workers to get vaccinated and to allow for paid leave to recover from any side effects.

But attorneys general from Missouri, Arizona, Montana, Nebraska, Arkansas, Iowa, North Dakota, South Dakota, Alaska, New Hampshire, and Wyoming sued the Biden Administration to stop the mandate. The US Court of Appeals for the Fifth Circuit granted a stay on the ETS on Nov. 12 pending further litigation.

In a 5-4 vote, the court allowed a mandate requiring health care workers in facilities that receive federal money to be vaccinated. President Joe Biden acknowledged both rulings.

“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,” Biden said. “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,” Biden said. “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.”