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Supreme Court Rules on OSHA Emergency Temporary Standard for Vaccination and Testing

Jan 14, 2022
UPDATE: On Jan. 25, 2022, OSHA announced it was withdrawing the COVID-19 vaccination and testing emergency temporary standard (ETS) issued on Nov. 5, 2021. The ETS was intended to protect unvaccinated employees of large employers with 100 or more employees from workplace exposure to coronavirus. The withdrawal is effective Jan. 26, 2022. Learn more

The U.S. Supreme Court, in a 6-3 decision Thursday, Jan. 13, reinstated the stay ofU.S. Supreme Court Building OSHA’s Emergency Temporary Standard (ETS) for COVID-19 vaccination and testing.  The court opinion stated that the OSH Act empowers the secretary of labor to set workplace safety standards, not broad health measures, and called the ETS “a significant encroachment into the lives—and health—of vast number of employees.”

The ETS would apply to private employers with 100 or more employees. In a 5-4 decision, the court allowed a Centers for Medicare and Medicaid Services vaccination mandate for workers at federally funded healthcare facilities.

“Employers not covered by another federal, state, or local mandate may choose to implement whatever policies and practices best-suited to the unique needs of their workplace, keeping in mind that in State Plan states, further change may still be on the horizon,” says ASSP member Courtney Malveaux, principal at Jackson Lewis. “In all cases, employers should communicate clearly with their employees about any change in their policies and practices and assure employees that they will continue to monitor all circumstances and make additional changes as necessary.”

Safety professionals may be wondering how this ruling affects their workplaces, and seeking guidance on what to do now. On Thursday, Jan. 20, ASSP brought together a panel of three experts — Deb Roy, president of SafeTech Consultants Inc., Julian Mercer, director of global environmental, health and safety at Hexagon, and Courtney Malveaux —for a timely conversation on this topic.

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