You cannot believe everything you hear or read in the media, but you already know that, right? On January 13, 2021, the U.S. Supreme Court rendered its decision granting the applications for stay of the Occupational Safety and Health Administration’s (“OSHA”) Emergency Temporary Standard (“ETS”), which mandates that employers with at least 100 employees require their workforce to either be vaccinated or subject to weekly testing and mask wearing. However, the fact that the Supreme Court granted the applications for emergency relief does not end this story, despite certain media outlets reporting that the ETS has been “struck down” or “blocked” in its entirety.
After the issuance of the ETS in November 2021, many states, businesses and nonprofit organizations challenged the mandate, arguing that OSHA had exceeded its statutory authority and that the ETS was otherwise unlawful. The Fifth Circuit initially entered a stay, delaying the effective date of the ETS, but when the cases were consolidated and heard before the Sixth Circuit, that court lifted the stay and allowed the ETS to take effect. This decision resulted in OSHA announcing that it would begin enforcing the ETS on January 10, 2022. The Sixth Circuit’s decision was appealed to the Supreme Court. The Supreme Court’s decision to issue the stay does not invalidate the ETS completely. What it means is that the Sixth Circuit will now have an opportunity to decide the legality of the ETS on its merits, meaning they will decide whether the ETS is lawful. The Supreme Court has merely put a pause on the ability of OSHA to enforce the ETS while this litigation proceeds.
So, what’s next? As mentioned above, the Sixth Circuit will review the applicants’ petition for review of the ETS on its merits.