Over the course of the last several weeks, employers with 100 or more employees have been in limbo as to whether they would be required to mandate vaccination and/or subject employees who are not fully-vaccinated against COVID-19 to weekly testing requirements under OSHA’s Emergency Temporary Standard (ETS). Covered employers were expected to begin to comply with the requirements of the ETS by January 10, 2022, with vaccination and/or testing requirements effective February 9, 2022. On January 7, 2022, the United States Supreme Court held oral argument over the issue of whether a stay of the ETS should be reinstituted due to the alleged overreach by OSHA.
This afternoon, the United States Supreme Court issued an order effectively blocking the implementation and enforcement of the ETS. The Court’s decision was the result of various petitions filed by states and private businesses seeking emergency relief from a December 17, 2021 determination by the Sixth Circuit Court of Appeal allowing the ETS to take effect. The 6-3 majority of the Court found that OSHA exceeded its regulatory authority to issue emergency rules in the face of “grave” workplace dangers. As a result of the Supreme Court’s decision, the case will now be sent back to the Sixth Circuit Court of Appeals for consideration of the merits of the various challenges to the legalities of the ETS, but any enforcement of the rule’s requirements will remain stayed indefinitely.
During the intervening period between the Sixth Circuit’s order dissolving the stay through today, covered employers have taken proactive steps to comply with the ETS. As a result, the question becomes: Now what? Barring a future order from the Supreme Court, the ETS will remain stayed indefinitely or at least until it expires by its own terms. Of course, employers who have already taken steps to implement certain polices based on the ETS can continue to move forward with implementation or simply continue to operate as normal. Employers will also be expected to adhere to their existing obligations under OSHA’s general duty clause to provide a workplace free from recognized hazards to employee health and safety.
As importantly, it should be kept in mind that today’s decision may not necessarily be the end of the fight. OSHA continues to receive public comment through January 19, 2022 on various items related to the development of a permanent standard based on the ETS. The agency has signaled that any such standard may be a much broader infectious disease rule, and not focused exclusively on protecting workers from COVID-19. Thus, employers may need to give serious consideration to how they will address vaccines and similar issues once again in the near future.
Notably, in a 5-4 decision, the Court also issued a ruling in a separate case that allowed the CMS vaccination mandate applicable to health care workers who work for employers that are recipients of Medicare and/or Medicaid funds to go forward, vacating injunctive relief issued by the lower courts. So those employers must comply with the vaccine mandate applicable to those workers.
We will continue to monitor any further developments relating to COVID workplace legal issues. The attorneys in the Labor and Employment Group of Bose McKinney & Evans are available to answer your questions and provide guidance regarding COVID-19 in the workplace.