The United States Supreme Court stayed implementation and enforcement of the vaccination or testing emergency temporary standard (ETS) set forth by the Occupational Safety and Health Administration (OSHA). Litigation over the ETS now moves back to the U.S. Court of Appeals for the Sixth Circuit for consideration of the merits of the ETS.
As a practical matter, employers that were subject to OSHA’s ETS because they have 100 or more employees have additional time to comply with its requirements, at least for now.
Supreme Court Decision
On January 13, 2022, the Supreme Court granted emergency relief to halt implementation of OSHA’s ETS regarding COVID-19. Under the OSHA ETS, as of January 10, 2022, employers with 100 or more employees were required to have COVID-19 policies for their workforce; provide paid time off for receiving a vaccination and/or recovering from side effects; collect information on their workforce’s vaccination status and maintain a “vaccine roster.”
Additionally, as of February 9, 2022, employers had to require employees entering the workplace to either provide proof of vaccination for COVID-19 or provide weekly negative COVID-19 test results.
In a 6-3 decision, the Court found those challenging the ETS were likely to succeed on their argument that OSHA lacked the authority to issue the ETS. The Court explained that, under the law, OSHA is empowered to “set workplace safety standards, not broad public health measures” and that “although COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most.” The majority of the Court determined that allowing OSHA to regulate broadly “the hazards of daily living” would expand OSHA’s authority beyond the bounds Congress set for it.
A separate concurring opinion expressed the view that the ETS violates the “major questions doctrine,” which generally provides that where Congress expects an agency to make a decision of vast economic and political significance, it must clearly indicate its intention to do so.
Three justices dissented, concluding that the challengers were not likely to prevail on the merits of their argument. The justices believed OSHA was within its power to issue an emergency standard to prevent workplace harm as COVID-19 presents a “grave danger” to millions of employees. Thus, the ETS was “necessary” to address these dangers; and OSHA provided sufficient evidence to support its imposition of the standard.
What does this mean for employers?
The Supreme Court decision means that implementation and enforcement of the OSHA ETS remain on hold for the time being. The Court directed the Sixth Circuit to consider the substantive validity of the ETS.
Thus, employers that were subject to the ETS now have additional time to prepare for compliance should the rule ultimately be upheld. However, many employers may also be subject to COVID-19 vaccination and testing requirements at state and/or local levels, which are not affected by the Court’s decision.
Employers should consult with counsel to discuss the meaning of the Supreme Court’s ruling in their workplace, as well as what safety practices they should consider in view of the ongoing challenges posed by the COVID-19 pandemic.
How can employers prepare to comply?
The ETS establishes minimum vaccination, proof of vaccination, face covering and testing requirements. The ETS requires covered employers to:
- Do one of the following:
- Develop, implement and enforce a mandatory COVID-19 vaccination policy
- Establish, implement and enforce a policy requiring employees who are not fully vaccinated to undergo weekly COVID-19 testing and wear a face covering at the workplace.
- Determine the vaccination status of each employee
- Obtain acceptable proof of vaccination
- Maintain records of each employee’s vaccination status
- Maintain a roster of employees’ vaccination status
- Provide employees reasonable time to receive each dose of the vaccine, with up to four hours’ paid leave
- Provide reasonable time and paid sick leave to recover from any side effects experienced following each dose
- Ensure that any employees who are not fully vaccinated are tested for COVID-19:
- At least weekly (if in the workplace at least once a week)
- Within seven days before returning to work (if away from the workplace for a week or longer)
- Require employees to promptly notify them if they test positive for COVID-19 or are diagnosed with COVID-19
- If an employee tests positive for COVID-19 or is diagnosed by a licensed health care provider, the employer must immediately remove them from the workplace, regardless of their vaccination status.
- Keep removed employees out of the workplace until they meet criteria for returning to work
- Ensure that any employee who is not fully vaccinated wears a face covering whenever indoors or occupying a vehicle with another person for work purposes
- Not prevent any employee, regardless of vaccination status, from voluntarily wearing a face covering unless it creates a serious workplace hazard
- Provide employees with:
- Information about the requirements of the ETS
- The workplace policies and procedures established to comply with the ETS
- The Centers for Disease Control document Key Things to Know About COVID-19 Vaccines
- Information about protections against retaliation and discrimination
- Information about the laws providing for criminal penalties for knowingly supplying false statements or documentation
- Report any work-related COVID-19 fatalities to OSHA within eight hours of learning about them
- Report any work-related COVID-19 in-patient hospitalizations within 24 hours of learning about them
- Make employee COVID-19 vaccination documentation and test results available for review or copying upon request by any employee or anyone having the written, authorized consent of that employee
- Disclose the aggregate number of fully vaccinated employees at the workplace and the total number of employees at that workplace to any employee (or employee representative) who requests this information
OSHA has provided sample policies for employers to reference:
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