U.S. Supreme Court Blocks OSHA ETS, Encouraging Dairy

The U.S. Supreme Court on Jan. 13 blocked the Biden Administration from enforcing a vaccination-or-testing requirement crafted by the Occupational Health and Safety Administration. The court’s decision stayed the OSHA ETS COVID vaccination and testing requirements for employers with 100 or more employees and the Biden Administration abandoned pursuit of the mandate Jan. 26.

The ruling, which was in line with NMPF concerns, means that employers with 100 or more employees do not need to follow the OSHA ETS COVID vaccination and testing requirements.

This means employers can continue to implement COVID safety precautions as they determine for their business, subject to any state or local requirements.

“We are pleased with the Supreme Court’s decision on a stay of the ETS,” said NMPF President and CEO Jim Mulhern in a statement. “NMPF has long been concerned about the practical application of the OSHA regulation at a time when testing supplies are scarce and food and agriculture supply chains are already disrupted by a lack of worker availability. We have voiced those concerns in meetings and other communications to federal officials over the last several months. The court’s decision will bring relief to dairy employers who strive 24/7 to put nutritious products on consumer plates.”

Parts of the mandate requiring record-keeping and masks had been scheduled to go into effect on Monday, with full requirements going into effect by Feb. 9.

The Supreme Court decision in effect ends the Biden Administration’s attempt to establish a sweeping nationwide vaccine mandate. It also ends a brief but intense storm of activity for NMPF, which was discussing the requirement with federal officials even before it was announced.

The ETS itself was issued last Nov. 4.

Prior to the issuance of that rule in October, NMPF and several other agricultural entities met virtually with the White House Office of Management and Budget (OMB) to express our concern about the unseen rule.  NMPF expressed concern about the availability of COVID tests and suggested that the government use the Defense Production Act (DPA) as was done previously in a number of COVID-related challenges, to ensure an adequate supply of tests.  The government failed to do so in a meaningful way, a mistake given current difficulty in acquiring both rapid home tests and PCR lab tests.  NMPF and the others also suggested suspending the application of the OSHA ETS to essential critical infrastructure workers as defined by DHS-CISA (which NMPF played a critical role in defining) should the rule create workforce problems.

Meanwhile, to prepare for the possibility that the mandate would take effect and be upheld in court, NMPF created a Toolbox on its website explaining ETS basics as litigation exploded. The 5th Circuit Court of Appeals issued a nationwide stay on OSHA’s implementation and enforcement of the ETS on Nov. 6. Within days of that action, every Court of Appeals in the country had at least one case before it – 34 in all. On Nov. 16, all the cases were consolidated into one and the litigation was assigned to the 6th Circuit Court of Appeals.

The 6th Circuit ultimately ruled with a three-judge panel that the 5th Circuit’s stay needed to be lifted.  Immediately thereafter that decision was appealed to U.S. Supreme Court, which blocked the ETS pending resolution in the 6th Circuit.

On Jan. 26, OSHA revoked the ETS while stating it would pursue a permanent final rule to be released in May. Such a rule would need to be drastically different from the broad unconstitutional rule that OSHA previously issues and even then, it is likely to be challenged in court.  Employers with 100 or more employees may now proceed with addressing COVID-19 in the workplace as they see fit subject only to state and local laws.

In a related matter, the government has asked NMPF at the end of December for assistance in determining the state of food and agriculture entities and their workforces given ongoing complications due to COVID-19 and the recent spike due to the Omicron variant.