On Jan. 13, the U.S. Supreme Court effectively thwarted the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) Nov. 5 issued emergency temporary standard (ETS) mandating covered employers to develop, implement and enforce a mandatory COVID-19 vaccination policy, unless they adopt a policy requiring employees to choose to either be vaccinated or undergo regular COVID-19 testing and wear a face covering at work.
The court’s decision concluded that the OSHA ETS exceeded the agency’s authority by seeking to regulate public health generally rather than focusing on a specific workplace threat, stating that COVID-19 is “a threat that is untethered, in any causal sense, from the workplace.”
The ETS applied to employers with 100 or more employees – firm or company-wide – and would have pre-empted conflicting state laws. The ETS also would have required employers to provide paid time to workers to get vaccinated and to allow for paid leave to recover from any side effects.
There are a variety of state laws and executive actions to restrict or ban vaccine mandates and other COVID-19 rules in the private sector; so, it is largely up to businesses to decide how and whether or not to enforce vaccine mandates in the workplace.
Notably, the court upheld a mandate for health-care workers at Medicare and Medicaid-participating facilities, and a mandate for federal contractors.
OSHA Response
Following the Supreme Court ruling, Secretary of Labor Marty Walsh issued a statement encouraging employers to:
- Require vaccination and/or weekly testing;
- Review and comply with OSHA’s current COVID-19 guidance; and
- Be aware of employer’s COVID-related responsibilities under the General Duty Clause.
OSHA is expected to provide further guidance in the coming weeks.
Original ETS Mandate
On Nov. 5, OSHA issued the ETS mandating covered employers to develop, implement and enforce a mandatory COVID-19 vaccination policy, unless they adopt a policy requiring employees to choose to either be vaccinated or undergo regular COVID-19 testing and wear a face covering at work.
The ETS was immediately challenged in court and was stayed — halting its effectiveness — in lower and appellate courts before making its way to the nation’s highest court.
Contact ACA’s Riaz Zaman for more information.