On January 13, 2022, a divided Supreme Court of the United States blocked enforcement of the “emergency temporary standard” issued by the Occupational Safety and Health Administration (“OSHA”). The emergency temporary standard requires employers with 100 or more employees to mandate that their employees be fully vaccinated against COVID-19 or undergo weekly testing for COVID-19 and wear a face covering in many work settings (the “OSHA Standard”). Enforcement of certain notice, data collection and paid time off requirements of the OSHA Standard technically took effect January 10, 2022 and enforcement of the testing requirement was scheduled to begin February 9, 2022. Goodwin previously issued client alerts regarding the OSHA Standard on November 4, 2021 and November 10, 2021.
THE DECISION BY THE SUPREME COURT
The Supreme Court’s decision reversed a December 17, 2021 decision by the United States Court of Appeals for the Sixth Circuit. The Sixth Circuit’s decision dissolved the nationwide temporary stay of enforcement of the OSHA Standard issued by the United States Court of Appeals for the Fifth Circuit on November 6, 2021. The Sixth Circuit was selected to hear the consolidated challenges to the OSHA Standard and lifted the Fifth Circuit’s stay, effectively allowing the OSHA Standard to take effect.
The opinion of the Supreme Court, which was unsigned, stated that OSHA is limited to regulating “occupational” hazards. It found that the OSHA Standard was not an occupational regulation because COVID-19 is a universal risk that spreads in other settings besides the workplace, such as schools and during sporting events. The opinion of the Court reasoned that this rendered the OSHA Standard an attempt by OSHA to regulate public health broadly, rather than the workplace specifically. For this reason, the OSHA Standard was not plainly authorized by the Occupational Safety and Health Act, the statute that created OSHA. The Supreme Court thus found that the challengers to the OSHA Standard were likely to succeed on the merits of their claim that OSHA lacked the authority to issue the OSHA Standard.
On these grounds, the Supreme Court stayed enforcement of the OSHA Standard until the resolution of the pending cases challenging the OSHA Standard in the Sixth Circuit, including subsequent Supreme Court review of any decision(s) by the Sixth Circuit. Given that the OSHA Standard, by definition, can only be effective for the six-month period following its issuance on November 5, 2021, the Supreme Court’s decision, from a practical perspective, means it is unlikely that the OSHA Standard will ever be enforced.
NEXT STEPS FOR EMPLOYERS
As a result of the Supreme Court’s decision, employers with 100 or more employees are no longer required to take steps to comply with the OSHA Standard.
In most states, employers may still elect to implement their own vaccine mandates, with or without testing and masking requirements. Indeed, unless state or local law provides otherwise, an employer could implement a vaccine mandate that follows the requirements of the OSHA Standard if it so desired.
However, because the OSHA Standard no longer preempts applicable state or local laws concerning vaccine-related requirements, employers must be mindful of complying with laws restricting or prohibiting vaccine-related requirements in their workplaces.
Complying with state and local laws may present challenges to multistate employers because some of these laws seemingly impose conflicting obligations on employers. For example, Florida law currently prohibits employers from instituting vaccine mandates unless they allow an employee to “opt out” for one of five reasons, including past recovery from COVID-19 infection and strongly held personal beliefs, making it easier for employees in Florida to qualify for an exemption than under the Americans with Disabilities Act or under Title VII of the Civil Rights Act. On the other hand, New York City law currently requires employees who perform in-person work or who interact with the public in the course of their business to be vaccinated. It prohibits unvaccinated workers from entering the workplace and does not provide for the same accommodations or “opt outs” as the Florida law. More states and cities may soon enact their own laws regarding vaccine-related requirements now that enforcement of the OSHA Standard is stayed for the foreseeable future, requiring employers to adopt different policies for the various states or cities where their employees are working.
Given the stay and the rapidly emerging state and local laws regarding vaccine-related requirements, employers should consult with their employment lawyers before adopting a policy addressing vaccine mandates and/or testing and masking requirements.