Following an expedited hearing on January 7, 2022, the United States Supreme Court granted a petition for stay of enforcement of OSHA’s COVID-19 Vaccination and Testing; Emergency Temporary Standard that would have been imposed on employers of 100 or more employees. This stay is, in effect, injunctive relief pending disposition of the numerous businesses, trade groups, and non-profit organizations’ consolidated petitions for review in the Sixth Circuit Court of Appeals.
The Court, disagreeing with the Sixth Circuit’s prior opinion, determined that the applicants’ petitions challenging the constitutionality of the mandate were likely to prevail. The core of the opinion focused on two questions: (1) what is OSHA’s limit of authority, if any; and (2) whether the mandate appropriately tailored to the authority conferred upon OSHA. The Court answered the first question by emphasizing that OSHA is permitted to set “workplace safety standards, not broad public health measures.”
In a forceful rebuttal to the OSHA’s argument in favor of the mandate, the Supreme Court demurred:
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 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 authorization.
In answer to the second question, the Court found OSHA’s current mandate to be inappropriately indiscriminate. Nevertheless, the Court provided some guidance to OSHA: “[w]here the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are plainly permissible.”
Accordingly, for the time being, employers with over 100 employees need not fear being cited by OSHA for non-compliance. However, this is not the end of the line for this issue. The Sixth Circuit will now take up the question of whether OSHA’s mandate is constitutional. Depending on the result, all eyes may once again turn to the Supreme Court to provide finality to the issue.
What Does This Mean for Restaurant Owners?
COVID-19 has substantially impacted the restaurant industry. Given the nature of the industry and the frequent close contact that employees have with each other and with customers, restaurant employers must remain far more vigilant than employers in other industries. While not currently required, restaurant employers may still benefit by implementing either mandatory vaccine requirements or weekly-testing as the mandate had originally anticipated.