Jan. 26, 2022 UPDATE - The Biden Administration moved to formally withdraw its vaccine and testing mandate effective on Jan. 26 in light of the Supreme Court ruling. While the ruling effectively ended the mandate for general business, NAHB urged OSHA to withdraw the rule in a letter dated Jan. 19. NAHB is pleased that OSHA has formally rescinded the rule.
The U.S. Supreme Court on Jan. 13 voted 6-3 to block the Biden administration from enforcing a COVID-19 vaccine or testing mandate for employers with at least 100 workers.
In issuing its decision, the Supreme Court stated that “OSHA has never before imposed such a mandate. Nor has Congress. Indeed, although Congress has enacted significant legislation addressing the COVID–19 pandemic, it has declined to enact any measure similar to what OSHA has promulgated here.”
“The Supreme Court ruling shows that OSHA clearly exceeded its authority by attempting to force more than 84 million workers to get COVID-19 vaccinations or compel them to submit to regular testing,” said NAHB Chairman Chuck Fowke. “NAHB strongly supports the efforts of the federal government to get as many Americans vaccinated as possible and has actively encouraged our members to make vaccines available to their workers. But using OSHA as the primary mechanism for this effort exceeds its statutory authority as a workplace safety agency.”
NAHB filed a Petition for Review challenging OSHA's rule and is pleased with the Supreme Court decision, especially since it indicated that OSHA has the authority to “set workplace safety standards, not broad public health measures.”
NAHB’s main objection was that OSHA failed to take into consideration whether the employees of certain industries, such as home building, were more or less at risk from COVID. The Supreme Court recognized this problem, explaining that OSHA’s rule “operates as a blunt instrument. It draws no distinctions based on industry or risk of exposure to COVID-19.”
Builders Should Still Be Prepared
However, the Supreme Court today merely granted a stay while the case is decided before the Sixth Circuit Court of Appeals. In other words, home builders and other businesses with at least 100 employers do not need to comply with OSHA's vaccine and testing mandate while the case is under consideration by the Sixth Circuit Court of Appeals. NAHB will participate in these proceedings.
Even if the Sixth Circuit later rules that the OSHA vaccine and testing mandate may move forward, the Supreme Court could step in later to overrule such a decision.
What this means is that residential construction firms should still prepare to comply with the OSHA vaccine and testing mandate in the coming months in the unlikely event that the vaccine and testing mandate gets reinstated. The best way to prepare is to be flexible and for employers to have a written plan in place for vaccination and testing.
NAHB has published resources to help larger home builders in this endeavor.
Finally, regardless of the outcome of the litigation on this issue, members still need to protect their workers from workplace hazards, including COVID-19 and remember that OSHA currently has a COVID-19 National Emphasis Program in place as well as enforcement authority under the General Duty Clause.
The Supreme Court also issued a separate decision today that would allow a vaccine mandate for certain health care workers to go into effect nationwide.