Following NFIB’s successful U.S. Supreme Court challenge, the Biden Administration has withdrawn its vaccine Emergency Temporary Standard for employers
Small businesses received good news on Jan. 25, when – after NFIB’s successful Supreme Court challenge – OSHA announced that it was withdrawing the Biden Administration’s Emergency Temporary Standard (ETS) vaccine mandate for businesses.
“The small business community is relieved to hear that OSHA has officially withdrawn the vaccine ETS on businesses and will no longer move to enforce the mandate,” said NFIB Legal Center Executive Director Karen Harned in a statement. “As NFIB argued at the U.S. Supreme Court, OSHA does not have the emergency authority to regulate the American workforce with such a mandate and we are pleased the Court agreed. We urge OSHA to also withdraw the proposed rule as small businesses continue to face extraordinary challenges and this mandate would exacerbate those. This is a win for small businesses who are working hard to get their businesses and the economy back on track.”
In December 2021, the NFIB Small Business Legal Center petitioned the U.S. Supreme Court to issue a stay that would block enforcement of OSHA’s ETS, which mandated businesses with 100 or more employees require their employees to receive a COVID-19 vaccine, or else undergo weekly testing and wear a mask while at work.
NFIB’s lawsuit argued three main points:
1. OSHA did not use the typical notice-and-comment procedure for the mandate to gather public input, instead they depended on the ill-defined “emergency” provision of the Occupational Health and Safety Act to immediately implement the mandate.
2. A nationwide COVID-19 vaccine and testing mandate, monitoring, and database is a policy decision that should be left to Congress, not the White House or a federal agency.
3. The mandate would result in unrecoverable compliance costs, lost profits, lost sales, and further exacerbate the labor shortage for small businesses. It would also restrict the freedom of small business owners to decide how best to operate their businesses.
On Jan. 13, the U.S. Supreme Court issued a stay of OSHA’s ETS in a 6-3 opinion, ruling in NFIB’s favor and blocking the vaccine mandate from taking effect. The Court concluded that OSHA overstepped its authority, with no clear authorization from Congress to enact a vaccine-or-testing mandate that would have impacted more than 80 million workers across America.