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Supreme Court Stays OSHA’s Vaccine ETS: How School Districts Should Respond
By Susan S. Hodges, Jeffrey P. Catalano on January 14, 2022
Supreme Court Stays OSHA’s Vaccine ETS: How School Districts Should Respond

In a 6-3 decision, the Supreme Court reinstituted the stay blocking OSHA from enforcing its vaccine Emergency Temporary Standards ("ETS") on employers of 100 of more workers through the pendent litigation before the Sixth Circuit Court of Appeals. Essentially, SCOTUS determined that Congress did not give OSHA the authority to exercise such a broad power of vast economic and political significance. The majority distinguished between OSHA’s authority to regulate an occupational-specific risk and OSHA’s lack of authority to regulate everyday risk of contracting COVID-19 which we all face.

For clarity, SCOTUS did not state that the vaccine-or-test mandates were “unconstitutional” or that they “violated a person’s civil rights or liberties”; rather, SCOTUS stated that Congress did not give OSHA the authority to institute this rule on an emergent basis. In a separate decision, Congress allowed a vaccine mandate to go into effect for health care workers, as Congress gave authority to the Secretary of Health and Human Services to impose conditions on the receipt of Medicaid and Medicare funds that the Secretary found necessary in the interest of health and safety of individuals who are furnished services.

Despite SCOTUS’ decision to continue the stay, their decision has very little impact upon New Jersey school districts. In particular, Justice Gorsuch’s concurring opinion confirmed that “[t]he question before us is not how to respond to the pandemic, but who holds the power to do so. The answer is clear: Under the law as it stands today, that power rests with the States and Congress, not OSHA.” Essentially, the Supreme Court affirmed the State’s power to respond to the pandemic.

As such, Governor Murphy’s Executive Order 281, which allowed Executive Orders 251 and 253 to remain in effect, continues to be the mandate school districts must enforce. Districts must continue to comply with the statewide school mask mandate set forth in Executive Order 251, as well as the employee COVID-19 vaccination and testing requirements under Executive Order 253.

Districts must comply with the Executive Orders and are not permitted to enact or enforce policies that conflict with their requirements regarding masks in school buildings and employee vaccination and testing requirements. Those who violate the Executive Orders risk being charged with a disorderly persons offense, which could result in imprisonment and/or a fine.

For questions, contact Susan S. Hodges or Jeffrey P. Catalano.

The content of this post is for informational purposes only and should not be construed as legal advice or legal opinion. You should consult a lawyer concerning your specific situation and any specific legal question you may have.

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