In
NFIB v. OSHA, the Court focused its decision on OSHA’s emergency temporary standards which require the Secretary to show (1) “that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (2) that the emergency standard is necessary to protect employees from such danger.” 29 U.S.C. §655(c)(1). The Court held that OSHA’s rule did not meet this rigorous standard. The Court also referenced the standard’s lack of diversification around various industries or risk of exposure as being too broad and announced: “The Act empowers the Secretary to set workplace safety standards, not broad public health measures”.
Conversely, in
Biden v. Missouri, the Court found that the mandate should be upheld as the actions of the Department of Health and Human Services were within the limits imposed by Congress, also noting that the Department had a history of issuing rules similar to the one at issue.
What does this mean for your business?
- Before calling off implementation plans, make sure you do not fall under the Healthcare Rule or the Federal Contractor Vaccine Rule. The Federal Contractor Vaccine Rule remains stayed and the CMS Rule has been upheld by the Supreme Court
- If you will not be moving forward with a vaccine mandate, dispose of employee vaccination records in a safe manner and communicate any change in plans to your employees.
- Recall that the General Duty Clause remains in effect and employers have an obligation to provide a safe work environment for employees. OSHA’s ETS can be viewed as guidance as it relates to obligations under the General Duty Clause.
