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The Biden Administration continues its march towards implementation and enforcement of permanent vaccination mandates.

OSHA withdraws OSHA Emergency Temporary Standard (ETS)

On January 13, 2022, the Administration’s plan to force employers to vaccinate or test more than 84 million employees was blocked by the Supreme Court.  In its ruling, the Supreme Court held that OSHA did not have emergency authority to mandate that employers of 100 or more employees must vaccinate or test their employees.  In its decision, the Court’s majority stated 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.  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.  … Contrary to the dissent’s contention, imposing a vaccine mandate on 84 million Americans in response to a worldwide pandemic is simply not “part of what the agency was built for.”

While some predicted that this ruling on the stay would be the effective end of the Administration’s efforts to force vaccination as the ETS would only be a temporary rule, the opposite appears to be the case.  On January 25, 2022, OSHA issued a prepublication notice of its intent to withdraw the OSHA ETS interim final rule, but stated that it intends retain the ETS as a “proposed rule” (the comment period closed January 19, 2022) for a “proceeding” to promulgate an occupational safety or health standard. In a separate statement, OSHA indicated that it intends to prioritize its resources to promulgate a permanent COVID-related standard for healthcare.  Thus, the Administration may be planning to make the requirement for vaccination for COVID-19 a permanent fixture – the question is whether this will be limited to healthcare or more broadly applicable. Given the language of the decision by the majority of the Court, a permanent rule that does not distinguish between the various businesses, types of work and workplace conditions will be vulnerable to a challenge. The Supreme Court’s reasoning in its January 13, 2022 decision made clear the majority’s position that COVID-19 on its own is not a uniquely occupational hazard subject to OSHA’s regulatory ETS authority. Accordingly, any permanent rule seeking to impose requirements similar to those set forth in the ETS, or which does not address occupation-specific risks related to COVID-19, may be subject to similar challenges.

Georgia v. Biden District Court Clarification of Preliminary Injunction

During the pendency of the appellate court’s review of the preliminary injunction enjoining implementation of the government contractor vaccination mandate, the Administration sought clarification of the scope of the injunction at the District Court – asking whether it could enforce the mandate where contractors had “voluntarily” accepted the clause and whether it could enforce the mandate’s masking and social distancing requirements.  On January 21, 2022, the District Court issued its ruling on the requested clarification.  The Court confirmed that it lacked jurisdiction over the injunction while an appeal was pending at the Court of Appeals.  However, the District Court found that it did retain jurisdiction to “supervise the enforcement of its injunction and to preserve the status quo pending appeal” per FRCP 62(c).  It declined to provide an advisory opinion on the question of enforceability of the mandate where there was voluntary acceptance of the clause, since that was a “vaguely-described hypothetical situation.”  With regard to the second part of the clarification request, the Court also declined to provide the requested clarification though it stated that the answer was straight forward, “Defendants are ENJOINED … from enforcing the vaccine mandate ….” While the Court may believe that this was a clear response, the Executive Order covered the guidance issued by the Safer Workforce Task Force, which includes guidance regarding vaccination as well as masking and social distancing.  Looks like we have to wait for the appellate court to act for further clarification on this case.

These matters continue to develop.  Contact the author or your Stinson counsel if you have questions on this advisory or related matters.  Stay tuned for more updates.