On January 13, 2022, the U.S. Supreme Court granted an emergency stay of the Occupational Health and Safety Administration’s (OSHA) Emergency Temporary Standard (ETS), holding that the parties challenging the ETS are likely to succeed on their argument that OSHA “lacked authority to impose the mandate.” The Court explained that OSHA is empowered by Congress “to set workplace safety standards, not broad public health measures,” and that the risk of contracting COVID-19 does not qualify as an occupational hazard.
However, this is not the end of the road for the ETS: the Sixth Circuit Court of Appeals will now decide whether or not OSHA is indeed empowered to impose the ETS, and that decision could then go to the Supreme Court for final disposition. Until the ultimate fate of the ETS is decided, the ETS will not be implemented and enforced. In response to the Supreme Court’s stay, Oregon OSHA announced that it “will not move forward with adopting the same or similar standard in Oregon.”
Simply put, employers who would have been required to comply with the ETS or any related Oregon standard are off the hook—for now. Oregon employers may generally still choose to require vaccination of their employees. Further, Oregon OSHA’s existing COVID-19 rule regarding infection control planning, exposure risk assessments, sanitation, and notification, is still in effect, as is the Oregon Health Authority’s rule requiring wearing face coverings indoors.
This update is prepared for the general information of our clients and friends. It should not be regarded as legal advice. If you have questions about the issues raised here, please contact any of the attorneys in our Labor & Employment Practice Group, or the attorney with whom you normally consult.