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Supreme Court blocks OSHA vaccine mandate

January 14, 2022 By    

By a 6-3 decision, the U.S. Supreme Court granted a stay on a U.S. Occupational Safety and Health Administration (OSHA) emergency temporary standard (ETS) requiring employers with more than 100 employees to develop, implement and enforce a policy that demands full vaccination against COVID-19 or regular weekly testing with mandatory face coverings.

The stay by the nation’s highest court blocks the Biden administration’s attempt to require the vaccine mandate for large businesses.

The case reached the Supreme Court after the U.S. Court of Appeals for the 5th Circuit issued a stay on the measure. OSHA sought to lift the stay, so the case moved to the 6th Circuit, which had ruled in OSHA’s favor.

The National Propane Gas Association’s (NPGA) counsel, representing NPGA and several other associations in a litigation coalition, argued before the Supreme Court to urge the justices to reinstitute the stay granted by the U.S. Court of Appeals for the 5th Circuit. NPGA’s counsel was one of two litigants granted review by the Supreme Court – the other litigant being a collection of state attorneys general, according to the association.

With the stay back in place, NPGA’s counsel will now shift to argue against the merits of the standard before the U.S. Court of Appeals for the 6th Circuit.

NPGA says it anticipates OSHA will revise its recent enforcement discretion notice to abide by the terms of the stay. Updates from OSHA are available here.

In a statement on the Supreme Court ruling, U.S. Secretary of Labor Marty Walsh says: “OSHA promulgated the ETS under clear authority established by Congress to protect workers facing grave danger in the workplace, and COVID is without doubt such a danger. The emergency temporary standard is based on science and data that show the effectiveness of vaccines against the spread of coronavirus and the grave danger faced by unvaccinated workers. The commonsense standards established in the ETS remain critical, especially during the current surge, where unvaccinated people are 15-20 times more likely to die from COVID-19 than vaccinated people. OSHA will be evaluating all options to ensure workers are protected from this deadly virus.”

In the statement, Walsh insists that, regardless of the outcome of the proceedings, OSHA will do everything in its existing authority to hold businesses accountable for protecting workers, including under the COVID-19 National Emphasis Program and General Duty Clause.

NPGA’s litigation petition joins several trade associations that rely on over-the-road transportation and provide consumer services or goods. NPGA says the petition is not premised on the value or efficacy of COVID-19 vaccines but rather the recognition that members have taken extraordinary measures to protect employees, customers and communities during the pandemic and the immediate irreparable harm of losing employees, incurring substantial compliance costs and worsening already-fragile supply chains and labor markets.

NPGA says it will continue to keep members apprised of its litigation efforts and resources. NPGA is pursuing three parallel tracks: OSHA rulemaking on the ETS; litigation before the U.S. Court of Appeals for the 6th Circuit; and guidance materials for the ETS, if the compliance deadlines are enforced. Material available on the Member Dashboard includes guidance and templates to develop ETS policies, as well as guidance and FAQs on the primary requirements of vaccination executive orders for federal contractors and subcontractors.

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