On Jan. 13, 2022, the United States Supreme Court (SCOTUS) granted an emergency request for relief staying the Occupational Safety and Health Administration’s Emergency Temporary Standard (ETS), requiring all employers with 100 or more employees to impose vaccination or testing requirements for their employees. However, now that the high court has ruled, employers are sure to face a slew of questions about what comes next.
Below are a few practical considerations for employers:
THIS MAY NOT BE THE LAST WORD FROM SCOTUS
Importantly, SCOTUS’ decision did not completely nix the ETS for good. The scope of SCOTUS’ ruling is limited to the single issue of whether the ETS should remain in effect while the legal challenges play out in the lower circuits. SCOTUS remanded the matter back to the Sixth Circuit for a ruling on the validity of the ETS on the merits of the petitioners’ various claims.
On remand, the Sixth Circuit could possibly revive the ETS along with its requirements for employers. However, this is unlikely, since the Court made clear that it believes that OSHA exceeded its authority in enacting the ETS. There is little chance that the ETS would survive a second round with the high court.
OSHA MAY HAVE OTHER OPTIONS
Separate from the ETS, OSHA may move forward with a permanent standard for employers under regular, non-emergency rulemaking. The written comment period for this standard ran through Jan. 19, 2022, and OSHA has received more than 120,000 comments from the public. Moreover, in its most recent regulatory agenda for Spring 2022, OSHA included plans to propose additional regulations for a rule governing “infectious disease” in the workplace. That being said, these types of rules take years to develop, promulgate and enact, so we may not see these for quite some time.
Further, OSHA may glean on some advice from the justices and attempt another try at a different, narrower standard to survive judicial scrutiny. For example, in its decision, SCOTUS said, “where the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are plainly permissible.” Specifically, SCOTUS provided examples for those researchers who work closely with the COVID-19 virus or for those employees who work in crowded environments. It is unclear whether OSHA will go down this path, but it is a foreseeable possibility for some legal scholars.
Following SCOTUS’ ruling last week, OSHA continues to urge all employers to require workers to get vaccinated or tested weekly to fight against COVID-19. OSHA announced that, “regardless of the ultimate outcome of the proceedings, OSHA will do everything in its existing authority to hold businesses accountable for protecting workers, including under the COVID-19 National Emphasis Program and [the OSH Act’s] General Duty Clause.” Employers should, therefore, be aware that OSHA will continue to monitor the COVID-19 pandemic and the implementation of safety measures in the workplace moving forward.
EMPLOYERS MAY STILL MANDATE VACCINATIONS… BUT BE CAREFUL
Employers who have already implemented vaccine mandates in the workplace may keep them in place. Notably, SCOTUS’ decision does not prohibit employers from requiring some or all of their employees to be vaccinated. However, in the absence of the ETS, which explicitly pre-empted conflicting state laws, employers must review state or local law before making decisions about vaccine mandates. Several states, like Florida and Tennessee, have already adopted restrictions or prohibitions on employer vaccine mandates, and other states, like Ohio, are actively considering similar laws in their state legislative branches.
Employers should also check state and local laws that require employers to implement vaccine mandates or similar precautions in the workplace. Some states or cities, like New York City, have implemented rules requiring employers to issue vaccine mandates in their workplaces. These can equally affect an employer’s decision to mandate or not mandate vaccines in the workplace.
Employers are also free to adopt testing or masking requirements for employees in the workplace, like the ones in the ETS. Again, employers should check state and local law before doing so.
KEEP VACCINE INCENTIVES IN MIND AS AN ALTERNATIVE
Vaccine incentives can be an alternative to mandates. Thanks to clear guidance from the EEOC, employers now have directions on how and when to use incentives with respect to vaccine mandates. Employers can offer incentives, or “carrots” as opposed to “sticks,” to those employees who are fully vaccinated. Note, the employer should determine the definition of “fully vaccinated” (e.g., whether a booster is necessary). Types of incentives may include cash, entrance into a company raffle, gifts or additional PTO.
The EEOC has said that if employees voluntarily provide documentation confirming vaccination status and get the vaccination on their own, employers can offer any incentive with no apparent limitations. However, if the employer itself, or any entity on the employer’s behalf, administers the vaccine in-house, employers may still offer incentives with some limitation. For the latter, one thing an employer should consider is if the incentive is so substantial as to be coercive.
Before employers choose to offer these types of incentives, however, there are several considerations to think about, including (i) providing accommodations to those employees who have legitimate medical or religious reasons for not receiving the vaccine and (ii) confidentiality assurances related to employee’s vaccination records. Employers should also be aware that offering incentives to family members of employees, even if these family members get vaccinated through a vaccination program at your business, may run afoul of federal law.
THE FEDERAL CONTRACTOR AND CMS MANDATE
Simultaneous to its ruling on the ETS, SCOTUS also released a decision upholding the mandate for healthcare facilities and allowing it take effect. Again, this ruling only allows the healthcare mandate to take effect while the legal challenges are disputed in the lower courts. With this ruling, there are new compliance deadlines for healthcare facilities in certain states, including Ohio.
Late last year, the Biden administration also issued a third vaccine mandate for federal contractors, which was not addressed by SCOTUS in its recent decisions. This mandate remains stayed nationwide, and whether it will survive is unclear.