In November, the Occupational Safety and Health Administration (OSHA) announced its Emergency Temporary Standard (ETS) that would require employers with 100 or more employees to implement a mandatory workplace rule requiring that employees either be vaccinated against COVID-19 or submit to regular testing requirements.

On Friday, January 13, 2022, the Supreme Court ruled that the ETS was an unlawful exercise of authority by OSHA. The Supreme Court’s opinion notes: “Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly.”

It appears unlikely that the ETS will be repackaged into a narrower rule. The White House recently announced that “it is now up to States and individual employers to determine whether to make their workplaces as safe as possible for employees.” Similarly, Governor Whitmer has signaled that there are no plans to implement any vaccine mandate in Michigan.

Note, too, that although Michigan healthcare employers remain subject to MIOSHA emergency rules, such rules have been lifted in relation to non-healthcare workplaces. Nonetheless, Michigan businesses are well advised to continue implementing and enforcing common sense measures to reduce the risk of COVID-19 transmission. Meanwhile, employers should ensure that all written policies remain consistent with their employment practices and procedures.

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