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As expected, the OSHA Emergency Temporary Standard (ETS) concerning mandatory vaccination and testing requirements has taken another drastic turn. The Supreme Court has issued a 6-3 ruling striking down the vaccine and testing ETS. This means that, for the time being, there is no federal requirement for vaccinations and testing for private employers with 100 or more employees (among other qualifying entities).

After the ETS was stayed by the Fifth Circuit Court of Appeals, the Sixth Circuit Court of Appeals lifted the stay shortly after, back on January 7. ETS challenges were placed into a multi-jurisdictional lottery that encompassed several circuit courts.

And now, the latest turn essentially brings us back to where we were a few weeks ago, after the initial stay issued by the Fifth Circuit.

The full per curiam decision can be found HERE, but we'll highlight the majority and dissenting opinions. Opinions were, as expected, drawn along ideological lines. The more conservative justices opposed the requirement/ETS, whereas the more liberal justices supported it.

The conclusion of the majority opinion, written by Justice Gorsuch and joined by Justices Thomas and Alito:

The question before us is not how to respond to the pandemic, but who holds the power to do so. The answer is clear: Under the law as it stands today, that power rests with the States and Congress, not OSHA. In saying this much, we do not impugn the intentions behind the agency’s mandate. Instead, we only discharge our duty to enforce the law’s demands when it comes to the question who may govern the lives of 84 million Americans. Respecting those demands may be trying in times of stress. But if this Court were to abide them only in more tranquil conditions, declarations of emergencies would never end and the liberties our Constitution’s separation of powers seeks to preserve would amount to little.

Meanwhile, the conclusion of the dissenting opinion from Justices Breyer, Sotomayor and Kagan:

Today, we are not wise. In the face of a still-raging pandemic, this Court tells the agency charged with protecting worker safety that it may not do so in all the workplaces needed. As disease and death continue to mount, this Court tells the agency that it cannot respond in the most effective way possible. Without legal basis, the Court usurps a decision that rightfully belongs to others. It undercuts the capacity of the responsible federal officials, acting well within the scope of their authority, to protect American workers from grave danger.

There are still many questions to be answered. Among them are whether OSHA will push for (and receive) an appeal for a hearing once more in the Sixth Circuit, and whether state OSHA departments will push for their own vaccination and testing requirements.

As more developments come, we'll keep you updated!

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