- The U.S. Supreme Court issued a stay on the Occupational Safety and Health Administration’s COVID-19 vaccination emergency temporary standard in a per curiam decision published Thursday.
- “OSHA has never before imposed such a mandate,” the court said. “Nor has Congress. Indeed, although Congress has enacted significant legislation addressing the COVID-19 pandemic, it has declined to enact any measure similar to what OSHA has promulgated here.” Clarence Thomas, Samuel Alito, and Neil Gorsuch, Associate Justices, concurred in the decision. Stephen Breyer and Sonia Sotomayor, Associate Justices, and Elena Kagan dissented.
- However, the court issued a separate per curiam opinion dissolving injunctions placed on a vaccination mandate for healthcare workers issued by the Centers for Medicare and Medicaid Services.
As several of the justices hinted during oral arguments on Jan. 8, the issue of whether to stay OSHA’s ETS came down to the agency’s statutory authority granted to it under the Occupational Safety and Health Act. The majority ruled that the ETS’ challengers would likely succeed on the merits, claiming that Marty Walsh, Secretary of Labor, lacks the authority necessary to issue such requirements.
“This is no ‘everyday exercise of federal power,'” the high court wrote, citing its own precedent stating that it expects Congress to “‘speak clearly when authorizing an agency to exercise powers of vast economic and political significance.'” That refers to the court’s major questions doctrine, which observers had speculated it might invoke.
In a statement Thursday, Walsh said he was “disappointed” with the court’s decision, calling it “a major setback to the health and safety of workers across the country.” He noted that OSHA would continue to hold businesses accountable for protecting workers as part of its COVID-19 National Emphasis Program and under its General Duty Clause.
” We urge employers to insist that workers get vaccinated and tested every week to combat this deadly virus at work,” Walsh stated. “Employers are responsible for the safety of their workers on the job, and OSHA has comprehensive COVID-19 guidance to help them uphold their obligation. “
Impact of construction
Associated Builders and Contractors, which had filed one of the emergency appeals to the Supreme Court against OSHA’s ETS, applauded the court’s decision in a statement.
“ABC is proud to have played an important role in preventing OSHA from causing irreparable harm to the construction industry,” said Ben Brubeck, ABC’s vice president of regulatory, labor and state affairs in the statement. “This is a big win in removing compliance hurdles for the construction industry, which is facing multiple economic challenges, including a workforce shortage of 430,000, rising materials prices and supply chain issues. “
ABC continues to support vaccinations and encourages members to use its COVID-19 vaccination toolkit to keep workers safe on construction jobsites, he said.
Jessica E. Martinez, co-executive director of the National Council for Occupational Safety and Health, took the opposite stance, calling the decision “a deeply flawed opinion” that ignores both law and precedent.
“At a time when the COVID-19 virus is spreading faster than ever, workers will pay the price — with their very lives — for this wrong-headed decision by the Supreme Court,” said Martinez. “… OSHA can and should still require employers to meet their legal and moral obligation to provide a workplace safe from known hazards, which certainly includes infectious diseases like COVID-19. “
The ruling will leave the decision of whether or not to require vaccines in the workplace up to individual employers. PCL Construction, for example, stated that it adheres to the law and strives to be “in step” with industry standards.
The firm encourages employees who are able to do so to get the COVID-19 vaccine, but will not mandate vaccination within the company unless required by a client, according to Deron Brown, president and chief operating officer of PCL’s U.S. operations.
“Many of our workers have voluntarily chosen to get the COVID-19 vaccine. We’ve been able safely to continue operating our projects thanks to voluntary vaccinations as well as other precautions like mask wearing and handwashing,” Brown shared in a statement with Construction Dive. We respect both sides of this issue, but there is no doubt that it is divisive in the industry. We are bound by ethical obligations to adhere to the law at work. “
Generally, management-side attorneys who spoke to HR Dive said