Yesterday (January 13), the United States Supreme Court blocked a mandate for employees of large, private businesses to either be vaccinated against COVID-19 or test regularly. But the court also left in place a mandate for most U.S. healthcare workers to receive the vaccination. According to Indiana University Maurer School of Law Professor Ken Dau-Schmidt, the outcome wasn’t necessarily surprising.
“The Supreme Court has decided that OSHA’s emergency temporary COVID standard requiring vaccination or testing for most employees of firms with more than 100 employees likely exceeded the agency’s statutory authority, thus effectively ending possible enforcement of this standard. The result is less surprising than the reasoning used by the Court to reach this result,” Dau-Schmidt said.
“Although the Court based its decision on the limits of OSHA’s statutory authority, it spent almost no time discussing the relevant statutory language prescribing those limits. The Occupational Safety and Health Act allows OSHA to promulgate emergency temporary standards when such standards are ‘necessary’ to protect workers from ‘grave danger,'” he said.
“Although it is a good question whether OSHA’s standard, predicated more on the size of the employer rather than employee exposure, met these statutory requirements, the majority ignored these questions in favor a discussion of congressional and administrative power and a court manufactured notion that OSHA applies only to risks peculiar to the workplace and does not include COVID risks because they also exist in the greater society.”
Dau-Schmidt, the Willard and Margaret Carr Professor of Labor and Employment Law, is a nationally recognized teacher and scholar in labor and employment law and the economic analysis of legal problems.
“The Court’s opinion raises the question: can OSHA effectively regulate COVID risks in the workplace? During the Trump administration, OSHA determined that employers met their obligations to provide a workplace ‘free’ of recognized hazards if they met CDC guidelines for masking, distancing, and quarantine. If COVID is not a workplace risk, did this requirement exceed OSHA’s authority under the law? CDC guidelines now include a recommendation that all adults be vaccinated. Doesn’t requiring employees to work with unvaccinated coworkers expose employees to a recognized hazard? Although the Court’s decision could have been supported with well-reasoned arguments based on the statute, in this case the Court’s decision raises as many questions as it resolves.”
Dau-Schmidt can be reached at: kdauschm@indiana.edu or (812) 855-0697.
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