But, “OSHA’s indiscrimi­nate approach fails to account for this crucial distinction—between occupational risk and risk more generally—and ac­cordingly the mandate takes on the character of a general public health measure, rather than an ‘occupational safety or health standard.’ 29 U. S. C. §655(b) (emphasis added).”Justices Alito, Gorsuch, and Thomas concurred with Justices Roberts, Barrett, and Kavanaugh, and used their concurrence to focus on who has the authority to implement a vaccination or testing regime such as the ETS, concluding that the power rests in the states and Congress:The question before us is not how to respond to the pan­demic, but who holds the power to do so.

Footnotes -Executive Order on Protecting Worker Health & Safety (Jan. 21, 2020).29 U.S.C. §§ 655(b)-(c).29 U.S.C. § 655(c)(1).

Under the Occupational Safety and Health Act of 1970 (“OSH Act”), OSHA may only promulgate an ETS for “substances or agents determined to be toxic or physically harmful or from new hazards.” 29 U.S.C. § 655(c)(1). The court found, taking a holistic view of the OSH Act’s language and structure, including references to immunization, and Congressional authorization following the enactment of the OSH Act, that “[a]n agent that causes bodily harm—a virus—falls squarely within the scope of [the OSH Act].”

OSHA has the authority to issue an emergency standard if necessary to protect workers from a “grave danger” by “exposure to substances or agents determined to be toxic or physically harmful or from new hazards.” 29 U.S.C. § 655(c)(1). The court disagreed with the Fifth Circuit’s interpretation of the phrases “substances or agents,” “toxic or physically harmful,” and “grave danger,” and noted that the meanings of the phrases must be given a “holistic view of the language that Congress chose to include in its statutory authorization to OSHA.”

OSHA has also published FAQs, a summary, and a fact sheet.For instance, California’s Department of Industrial Relations requires employers to provide testing at no cost to the employee.29 U.S.C. § 655(c)(1).86 Fed. Reg. 61,403.

See 29 C.F.R. § 1910.501(m)(2)(ii).See 29 U.S.C. § 655(c)(3).See ETS preamble at 1–2; see also OSHA’s Vaccination and Testing ETS: How You Can Participate (https://www.osha.gov/sites/default/files/publications/OSHA4155.pdf).See 29 C.F.R. § 1953.5(b).See 29 C.F.R. § 1955.3(a).See, e.g., https://www.arkleg.state.ar.us/Acts/FTPDocument?path=%2FACTS%2F2021R%2FPublic%2F&file=1115.pdf&ddBienniumSession=2021%2F2021R (Arkansas law permitting exemption from mandatory vaccination or testing in if the employee proves “immunity for the virus” every six months); https://www.legis.iowa.gov/legislation/BillBook?ga=89&ba=HF902 (Iowa law requiring employers to grant exemption when employee submits a statement “that receiving the vaccine would be injurious to the health and well-being of the employee or an individual residing with the employee” or “that receiving the vaccine would conflict with the tenets and practices of a religion of which the employee is an adherent or member”); https://leg.mt.gov/bills/2021/billpdf/HB0702.pdf (Montana law prohibiting mandate

As explained in our prior alert, this action resulted from the Supreme Court’s decision issuing a stay of the ETS, National Federation of Independent Business v. OSHA (Jan. 13, 2022).Vaccination & Testing ETS To Serve As Proposed RuleOf note, the Federal Register notice says that the ETS will serve as a proposed rule for a permanent standard:Although OSHA is withdrawing the Vaccination and Testing ETS as an enforceable emergency temporary standard, OSHA is not withdrawing the ETS to the extent that it serves as a proposed rule under section 6(c)(3) of the Act, and this action does not affect the ETS’s status as a proposal under section 6(b) of the Act or otherwise affect the status of the notice-and-comment rulemaking commenced by the Vaccination and Testing ETS. See 29 U.S.C. 655(c)(3).Similarly, OSHA said on December 27, 2021, that it is withdrawing most provisions of its healthcare ETS, 29 C.F.R. § 1910.502, et seq., and that the healthcare ETS will serve as the proposal for a permanent standard:OSHA announces today that it intends to continue to work expeditiously to issue a final standard that will protect healthcare workers from COVID-19 hazards, and will do so as it also considers its broader infectious disease rulemaking.

But the danger present in such workplaces differs in both degree and kind from the everyday risk of contracting COVID–19 that all face. OSHA’s indiscriminate approach fails to account for this crucial distinction— between occupational risk and risk more generally—and accordingly the mandate takes on the character of a general public health measure, rather than an “occupational safety or health standard.” 29 U. S. C. §655(b) (emphasis added).Rather than litigate the merits of the ETS, on January 26, OSHA withdrew the ETS as an enforceable emergency temporary standard.

The emergency temporary standard mandated that covered employers must develop, implement, and enforce a mandatory COVID-19 vaccination policy or instead adopt a policy requiring employees to either get vaccinated or elect to undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination. The emergency standard was enacted under 29 USC § 655(c)(1), which allows OSHA to promulgate emergency temporary standards without going through the procedural mechanisms normally required for OSHA to enact a rule, i.e., notice, comment, and the opportunity for a public hearing.Numerous States, businesses, and non-profit organizations challenged OSHA’s rule in courts across the country. The Court of Appeals for the Fifth Circuit issued a stay of the enforcement of OSHA’s rule in one of these cases.

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.