On January 13, 2021, the United States Supreme Court blocked the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (the ETS) regarding COVID-19 vaccination and testing in the workplace. The ETS generally required covered employers to have either a mandatory COVID-19 vaccination policy or a policy where unvaccinated employees undergo weekly testing and wear a face covering at work. Following a December 17, 2021, ruling by the Sixth Circuit Court of Appeals, the ETS was scheduled to be enforced by OSHA, in part, on January 10, with its testing requirements to be enforced starting February 9. In light of the U.S. Supreme Court’s ruling today, that will not be the case.
What Was the Majority’s Reasoning for Blocking the ETS?
The majority of the U.S. Supreme Court found that the Occupational Safety and Health Act does not authorize the U.S. Secretary of Labor to issue a vaccine mandate. It described the ETS instead as a “broad public health” measure. That said, the majority acknowledged that OSHA has authority “to regulate occupation-specific risks related to COVID-19.” For the example, the majority signaled there would be no issue with a vaccine mandate by OSHA “[w]here the virus poses a special danger because of the particular features of an employee’s job or workplace . . . . [,}” such as with respect to “researchers who work with the COVID-19 virus” or workers “in particularly crowded or cramped environments.” But it drew a line between those sorts of workplaces and “the everyday risk of contracting COVID-19 that all face.” Specifically, the majority stated that “[r]equiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the” category of regulating “public health more broadly.”
But, Wait, the OSHA ETS Isn’t a Mandatory Vaccination Requirement, Right?
The majority of the Court dismissed what it called an “exception” from a mandatory vaccination policy requirement that permits employers to have a vaccine-or-test-and-mask policy instead. In that regard the majority generally observed that “employers are not required to offer [the vaccine-or-test-and-mask] option,” that the ETS “purports to pre-empt state laws to the contrary,” and that the ETS permits employers to remove unvaccinated employees from the workplace if they fail to get tested and wear face coverings. The dissenting opinion pointed out that the majority “obscures [employers’ policy] choice by insistently calling the policy a vaccine mandate.” That is, the ETS is not a vaccine mandate, according to the dissent. But, the majority appears to have disagreed with that observation.
What Do Employers Do Now?
OSHA still requires employers to provide a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” So, employers are feeling whipsawed by the multiple developments regarding OSHA’s ETS when figuring out how to keep their workers safe. At this time though, employers do not need to comply with the ETS, unless and until the U.S. Supreme Court’s ruling today is terminated and a different outcome and judgment is sent down.
Employers are, however, still permitted to institute their own workplace safety policies, which would include mandatory vaccination policies or vaccine-or-test-and-mask policies, unless state law otherwise prohibits the same—like Texas does with respect to mandatory vaccination policies. The Equal Employment Opportunity Commission has generally recognized that employers can require all employees to get the COVID-19 vaccine, provided that the employer complies with all applicable employment laws in doing so (e.g., provides reasonable accommodations for covered disabilities under the ADA and for sincerely held religious beliefs under Title VII). Many employers have done just that, even before OSHA’s ETS. Those policies are safe for now—again, absent a state law to the contrary.
As always, it behooves employers to stay abreast of CDC and OSHA guidance related to COVID-19 risks in the workplace, as it is a rapidly changing virus with risks that touch everyone, as the Supreme Court recognized. Employers should therefore be sure to involve senior manager, human resources, and appropriate legal counsel in complying with government guidance and regulations—and wading through the maze of court orders pertaining to the same. In this way, an employer’s approach to COVID-19 in the workplace will be consistent and deliberate.
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