January 13, 2022
By: Julie Hopkins
Today the United States Supreme Court issued a stay prohibiting enforcement of the OSHA Emergency Temporary Standard (ETS) that would have required large employers (those with100 or more employees) to require their employees to either be vaccinated or submit to workplace masking and weekly testing requirements.
OSHA is Not Authorized to Regulate Public Health
The Supreme Court recognized that the OSH Act empowers the Secretary of OSHA to set workplace safety standards, but does not give OSHA the authority to make rules concerning general public health measures. You may recall that the ETS treated all workplaces the same, and did not take into account any differences among and between the workplaces of the over 80 million affected employees.
Because the ETS did not distinguish between workplaces where there is a heightened risk of exposure because of something specific to the working conditions in that workplace, and those workplaces where an employee might have no greater risk that that which exists for individuals in their homes or when out and about in the general public, the Supreme Court found that the ETS took on the character of a general public health measure, rather than a workplace safety standard, and therefore OSHA had exceeded its statutory authority.
What this Means for Employers:
This ruling does not fully settle the issue of vaccination mandates for employers, as the underlying case challenging the ETS will continue to proceed on its merits before the Sixth Circuit while the stay is in place. Although a different outcome is unlikely, it is still possible.
Additionally, the courts have recognized that both private employers and individual states still have the authority to establish vaccination mandates. Even if a private employer does not wish to impose a vaccination mandate on its employees, the state(s) where the employer operates may still have something to say on the matter.
Finally, and perhaps most significantly, the Supreme Court clearly indicated in its ruling that OSHA would have the authority to propose more narrowly tailored regulations for workplaces where there is a particularized risk of contracting COVID-19, stating that “where the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are plainly permissible.” So we can reasonably expect to see additional targeted regulations from OSHA in the near future that will likely include vaccination provisions, especially for those workplaces where employees must work in close quarters.
If you have any questions, or need compliance assistance, please consult with your labor and employment counsel. As new developments occur, we will monitor and update this information.
Julie K. Hopkins is an experienced labor and employment advisor and problem solver. She works with diverse clients across a variety of industries to consistently provide the strategic guidance and support that enables organizations to more effectively and efficiently advance their goals while ensuring that their responsibilities to key internal and external stakeholders are met. She can be contacted at jkhopkins@strausstroy.com or 513-629-9459.