As we previously wrote, on September 9, 2021 President Biden announced a strategy to combat COVID-19 that, among other things, directed the Occupational Safety and Health Administration (OSHA) to issue an Emergency Temporary Standard (ETS) for private businesses with 100 or more employees, including independent schools, that would require employees to either (1) be fully vaccinated against COVID-19 or (2) undergo weekly COVID-19 testing.
OSHA published the ETS on November 5, 2021, with a compliance deadline of January 4, 2022. In the interim, a flurry of cases were filed, seeking to stop the ETS from going into effect. While the Sixth Circuit was set to hear consolidated cases, the Fifth Circuit issued a decision staying OSHA's ETS. On applications from various parties, the Supreme Court heard the matter.
What Does the Decision Say?
On January 13, 2022, the Supreme Court, in a 6-3 decision, reinstated the stay of OSHA's "vaccination or test" policy, preventing it from going into effect. In reaching this decision, the Court noted that OSHA's authority is generally limited to occupational or workplace risks. While the Court acknowledged that COVID-19 is a "universal risk," the fact that "COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather" led the majority to the conclusion that COVID-19 was not an occupational or workplace risk squarely within OSHA's purview.
Of note, the dissent by Justices Breyer, Sotomayor, and Kagan pointed out that there are other areas where OSHA implements regulations that otherwise affect life beyond the workplace (i.e., excessive noise and unsafe drinking water), noting that the close contact that occurs in working environments renders COVID-19 a "menace in workplace settings."
While the decision puts on hold a standard that would be broadly applicable to all workplaces, the Court did posit that it would likely be possible for OSHA to issue targeted standards for workplaces based on the particular features of a job or workplace. The Court also noted that state and local authorities retain the ability to issue their own vaccination mandates.
Are Independent Schools Still Permitted to Require Vaccination?
Yes! The Supreme Court's decision does not opine on the permissibility of vaccination mandates generally, but instead focuses on who has the authority to implement a requirement that employees be vaccinated. State and local authorities continue to retain the ability to implement their own requirements and standards. Similarly, and depending on state and local law, independent schools still retain the authority to implement their own policies for their employees (and students), as they deem necessary to protect the health and safety of the school community.
Independent schools with questions about the decision or their own policies are encouraged to contact Caryn Pass, Grace Lee, Janice Gregerson, or Ashley Sykes for assistance.
The authors are grateful for the contributions of Imani Menard, a law clerk in Venable LLP's District of Columbia office.