The U.S. Supreme Court voted 6-3 on Thursday to block the Biden administration's mandate that large employers require COVID-19 vaccines or testing for their employees. However, the court did leave the requirement in place for certain health care workers. Kenneth Dau-Schmidt, a professor in Indiana University Bloomington's Maurer School of Law, is available to comment on the ruling and its implications.
"The Supreme Court has decided that OSHA’s emergency temporary COVID standard requiring vaccination or testing for most employees of firms with more than 100 employees likely exceeded the agency’s statutory authority, thus effectively ending possible enforcement of this standard," Dau-Schmidt said. "The result is less surprising than the reasoning used by the Court to reach this result."
"Although the Court based its decision on the limits of OSHA’s statutory authority, it spent almost no time discussing the relevant statutory language prescribing those limits. The Occupational Safety and Health Act allows OSHA to promulgate emergency temporary standards when such standards are “necessary” to protect workers from “grave danger.” Although it is a good question whether OSHA’s standard, predicated more on the size of the employer rather than employee exposure, met these statutory requirements, the majority ignored these questions in favor a discussion of congressional and administrative power and a court manufactured notion that OSHA applies only to risks peculiar to the workplace and does not include COVID risks because they also exist in the greater society.
The Court’s opinion raises the question can OSHA effectively regulate COVID risks in the workplace? During the Trump administration, OSHA determined that employers met their obligations to provide a workplace “free” of recognized hazards if they met CDC guidelines for masking, distancing and quarantine. If COVID is not a workplace risk, did this requirement exceed OSHA’s authority under the law? CDC guidelines now include a recommendation that all adults be vaccinated. Doesn’t requiring employees to work with unvaccinated coworkers expose employees to a recognized hazard. Although the Court’s decision could have been supported with well-reasoned arguments based on the statute, in this case the Court’s decision raises as many questions as it resolves."
RSS