On Friday, November 5, 2021, the federal Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS) requiring all employers, with at least 100 employees, to ensure that their workers are fully vaccinated against COVID-19 or submit to weekly COVID testing. On Saturday, November 6, the United States Court of Appeals for the Fifth Circuit granted an emergency motion to stay the enforcement of the OSHA ETS.
On January 13, 2022, the United States Supreme Court issued a stay of the OSHA’s COVID-19 ETS. In issuing the stay, the Supreme Court only ruled on whether the ETS should be stayed to prevent irreparable harm while challenges to it continue to be litigated in the United States Court of Appeals for the Sixth Circuit. Presently, as a result of the Supreme Court’s order, employers with 100 or more employees are not required to comply with the ETS.
Although the Supreme Court majority that stayed the ETS strongly suggested that OSHA exceeded its authority when it issued the ETS, the Court did not invalidate the ETS. Now that the dust has settled somewhat, employers that would have been subject to the ETS, have been left to decide what, if any, actions they should take. Should they rescind polices put in place solely to comply with the now-stayed ETS? Can they keep those policies in place, and implement them? What should they do with the information they collected concerning their employees’ vaccination status?
Employers can rescind the policy they put in place, for now. The order staying the ETS means that all compliance deadlines set by OSHA relating to the ETS, including the policy development and implementation requirements, are suspended. Therefore, an employer that put a policy in place to comply with the ETS can rescind that policy now, if it chooses to do so, but also should be prepared to reinstate the policy if the stay on the ETS is lifted.
Employers can keep the policy in place and implement it. Nothing in the Supreme Court’s ruling prohibits employers from moving forward with plans they developed to be compliant with the ETS. This means that employers can have mandatory vaccination policies, or may implement mask-and-test requirements for unvaccinated employees. With the recent surge of the omicron variant and the possibility of future variants, employers may well want to the implement policies they developed which will serve to enhance employee health and safety.
Employers who collection the information regarding their employee’s vaccination status should retain this information until the final status on the ETS is known.
It is not an easy decision for employers to make on whether to implement a mandatory vaccination policy or a mask and test policy, as employers will have employees who will be upset regardless of the path the employer takes. Employers should remember that under OSHA’s General Duty Clause, they are required to implement health and safety measures to respond to the threats of Covid-19. So, choose carefully and ensure that you are following prevention and mitigation strategies to reduce the risks associated with Covid-19.