On January 13, 2022, the U.S. Supreme Court once again halted enforcement of the Occupational Safety and Health Administration’s ("OSHA") Vaccine Emergency Temporary Standard ("ETS").
Originally published on November 5, 2021, OSHA’s ETS mandated that covered employers with 100 or more employees develop, implement, and enforce mandatory vaccination or testing policies. On November 12, 2021, the ETS was just one week old when the Fifth Circuit Court of Appeals issued a stay blocking its enforcement. However, the ETS was temporarily revived on December 17, 2021, when the Sixth Circuit Court of Appeals lifted the stay, reasoning that regulating an “agent”, including a virus, to protect workers from a “grave danger” was well within OSHA’s authority. Evidently, the Supreme Court disagreed; in the 6 to 3 decision, the Supreme Court re-issued the stay on January 13, 2022, preventing OSHA’s enforcement of the ETS yet again. The Supreme Court reasoned that COVID-19 is not exclusively an occupational hazard and that OSHA is authorized to “set workplace safety standards, not broad public health measures.”
The Supreme Court sent the case back to the Sixth Circuit for a hearing on the merits of the ETS. In the meantime the Supreme Court’s stay will remain in effect while challenges to the validity of the ETS are litigated in lower courts. Although it is unlikely the regulation will ever take effect, it is not dead yet. Meaning, (1) if the Sixth Circuit determines that the ETS is valid, it could come before the Supreme Court again; or (2) OSHA could pursue drafting a similar, but more formal and permanent regulation.
While the courts continue to litigate the ETS, for the most conservative approach, employers may consider developing their own testing and/or vaccine policies. As we have reported, The Equal Employment Opportunity Commission ("EEOC") has said that employers may mandate vaccination subject to legally available medical and religious exemptions, and in California, the Department of Fair Employment and Housing ("DFEH") has concurred. While the fate of the ETS is being decided, employers may implement vaccination policies or consider a vaccine or test mandate. As has been the standard since the pandemic, employers should require at a minimum: (1) employees to report positive COVID-19 tests; (2) removing positive COVID-19 employees from the premises; (3) personal protective equipment and face coverings for employees who are unvaccinated or not fully vaccinated; and (4) procedures for tracking employees’ vaccination status and positive COVID-19 tests. We advise employers to consult with counsel before implementing such policies, to ensure compliance with local or state regulations.
You can find more information on the Vaccine or Test ETS here. Gordon & Rees will continue to monitor and provide additional updates as more information on this ever-changing matter is available.