To:
National Indian Gaming Association Member Tribes
From: Ernest L. Stevens, Jr., Chairman Jason C. Giles, Executive Director Re:
Supreme Court Issues Stay Temporarily Blocking Occupational Safety and Health Administration’s Emergency Temporary Standard Requiring Certain Employers to Mandate Vaccination Against or Weekly Testing for COVID-19
Date: January 14, 2022
On Thursday, January 13, 2022, the United States Supreme Court issued a stay on the Occupational Safety and Health Administration’s (OSHA’s) controversial Emergency Temporary Standard (ETS) mandating that employers with 100 or more employees require that their employees either receive full vaccination against COVID-19, or undergo weekly testing for COVID-19 at their own expense and wear a protective face covering while working. Finding for the challengers of the ETS, the effect of this decision is to temporarily freeze the decision of the Sixth Circuit Court of Appeals that allowed the regulation to go into effect nationwide, pending further judicial review. The ETS, which was set to become effective on January 19, 2022, would have impacted approximately 84.2 million workers in the United States and would have required the removal of non-complying employees from the workplace. The ETS also required that employers develop and enforce a COVID-19 vaccination policy, verify the vaccination status of each employee, and maintain proof of such status. Further, the ETS would have subjected non-compliant employers to fines up to $13,653 for a standard violation, and up to $136,532 for a willful violation. However, in issuing the stay which delays enforcement of the rule, the Supreme Court determined that the ETS likely exceeded OSHA’s scope of authority to issue the rule delegated to it by Congress. Specifically, the crux of the Court’s decision centered on the Occupational Safety and Health Act of 1970 which granted OSHA (through the Secretary of Labor) the authority to set “ occupational safety and health standards” but not “broad public health measures.” The Court opined that because COVID-19 poses a universal risk to individuals in all types of contexts, rather than strictly an occupational hazard, the ETS “takes on the character of a general public health measure, rather than an ‘occupational safety or health standard.’” Although the Court seemed to support the notion that OSHA could regulate occupational-specific risks related to COVID-19 (e.g., scientific researchers working with the virus or employees working in areas that are particularly crowded), it found that the overbroad regulatory reach of this ETS likely went beyond the authority delegated to OSHA by Congress.
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