By Sara J. Ackermann and Nicole L. Stangl
January 13, 2022
Today the Supreme Court ordered that OSHA’s ETS be placed back on hold (a/k/a a “stay”) and sent back to the 6th Circuit Court of Appeals. In its order, the Court‘s majority noted the ETS may have gone too far because it required employers to remedy a “public health” concern:
The Solicitor General does not dispute that OSHA is limited to regulating “work-related dangers.” She instead argues that the risk of contracting COVID–19 qualifies as such a danger. We cannot agree. Although COVID– 19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases. Permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authority.
It is important to note that the fate of the ETS is still undecided. The 6th Circuit will ultimately rule on whether the ETS is within OSHA’s authority and therefore valid. The litigation is likely to continue for several weeks and possibly months. After the 6th Circuit rules, the losing party will likely appeal again to the Supreme Court.
As always, we will keep you posted on the status of the ETS as it continues to weave its way through these legal challenges. In the meantime, consult us for advice tailored to your organization.
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