June 1, 2023 – The United States Supreme Court today ruled that OSHA’s Emergency Temporary Standard (ETS), requiring all employers with 100 or more employees to implement COVID-19 vaccination or testing policies, was unenforceable and exceeded the authority of the executive agency. Stating that, “[a]lthough Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given the agency the power to regulate public health more broadly,” the high court voted 6-3 to stay enforcement of the ETS while substantive legal challenges to it proceed in the lower court.

The ETS had previously been stayed by the Fifth Circuit the day after it was implemented. More recently, the Sixth Circuit lifted that stay and reinstated the ETS. A petition to the Supreme Court swiftly followed.

The high court’s ruling means the ETS is effectively blocked until further notice, and the Sixth Circuit will once again review its legality. However, given today’s decision, it seems unlikely that it will withstand any further legal challenges as a majority at the Supreme Court has now clearly articulated that the mandate exceeds OSHA’s authority.

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