On Thursday, Jan. 13, 2022, the U.S. Supreme Court reinstated a stay of OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) applicable to employers with 100 or more employees.
In a six-justice majority decision, the court determined that litigants opposing the ETS are likely to prevail on their claim that OSHA lacked statutory authority to impose the mandate. As a result of the court’s decision, employers no longer need to comply with the ETS.
In a separate 5-4 decision, the court lifted lower court injunctions that had blocked enforcement in some states of the workplace vaccination rule issued by the Centers for Medicare & Medicaid Services. The CMS rule applies to covered health care facilities that receive Medicare or Medicaid funds. Employers covered by the CMS rule will need to comply with it as the litigation over the rule continues.
Following the court's decision on the ETS, OSHA issued a statement encouraging voluntary compliance with the ETS and reminding employers that it "will do everything in its existing authority to hold businesses accountable for protecting workers."
Earlier this month, Minnesota OSHA adopted the ETS standard and timelines. In response to the Supreme Court’s decision, Minnesota OSHA has suspended its enforcement of the ETS. However, given the surge in COVID-19 cases due to the omicron variant, Minnesota OSHA "strongly encourages" employers to implement the requirements of the ETS.
The litigation technically returns to the Sixth Circuit Court of Appeals to further adjudicate the ETS. However, the Supreme Court has essentially decided the merits of the case. In granting the stay, the Supreme Court took issue with the scope of the ETS, calling it "indiscriminate" between occupational risk and risk more generally, and saying that it "takes on the character of a general public health measure, rather than an ‘occupational safety or health standard." The Supreme Court did leave the door open for OSHA to issue regulations that target occupation-specific risk, such as regulations for "researchers who work with the COVID-19 virus" or regulations addressing "risks associated with working in particularly crowded or cramped environments."
The Best Course for Employers
With the ETS no longer in force, employers can expect that OSHA will pay heightened attention to an employer’s duty to provide a safe workplace under the OSH Act’s General Duty Clause. Although employers need not follow the ETS, they should remain diligent in considering appropriate measures to mitigate and prevent the spread of COVID-19 in the workplace.
We Can Help
Maslon’s Labor & Employment Group will continue to monitor developments concerning the ETS litigation. We are available to help employers navigate COVID-19 issues in the workplace.
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