By Mark K. Cameron
After lengthy oral arguments last Friday, the United States Supreme Court today (January 13, 2022) stayed any enforcement of the OSHA Emergency Temporary Standard (ETS) mandating vaccination or weekly testing for all employers with 100 or more employees. The Court, In a 6-3 decision, determined that the petitioners challenging the ETS were likely to succeed on the merits and, therefore, a stay of enforcement during the litigation on the merits was appropriate. This is good news for all employers with over 100 employees who were facing the specter of requiring vaccinations or implementing masking and weekly testing rules and procedures.
The six justices who voted to stay the ETS agreed OSHA had likely exceeded its authority in enacting such a broad emergency rule without explicit authorization by Congress. The justices recognized that potential negative outcomes existed on both sides of this issue, but deferred to the democratic process “to weigh such tradeoffs.” The Court also released an opinion on the vaccine requirement for medical facilities in which it held on a 5-4 basis to allow that vaccine requirement to remain in effect.
What this means for Employers:
The stay means that employers do not have to worry about compliance with the ETS—at least for now. There’s still the possibility that the ETS will survive the final determination on the merits, though such an outcome appears unlikely at this point. Even with the stay, however, employers still need to be aware that the General Duty Clause of the OSH Act requires employers to implement certain measures to ensure safety in the workplace. OSHA has used the General Duty Clause of the OSH Act to cite employers that don’t take reasonable precautions to protect employees from the known dangers of COVID. That is in place now and, will remain, even if the ETS is eventually struck down. OSHA is likely to lean on the General Duty Clause to aggressively cite employers if an employee complains about their employer not doing enough to protect employees from COVID or if you have to report a COVID-19 related death or hospitalization.
Additionally, Arkansas Act 1115 goes into effect on Friday and will significantly limit employers' ability to mandate testing of their unvaccinated employees. Act 1115 requires employers who require vaccines to allow employees to opt out for any reason. And if there is a testing requirement, it allows the employee a broader range of options than the ETS would, including proof of antibodies, a positive COVID-19 test, and T-cell response tests due to previously having COVID. We will update soon regarding the implications/limitations of the effect of Act 1115.
The practical effect of the Court’s decision is to all but kill the ETS. The litigation on the merits should move quickly, but it still may take several months. There’s a likelihood that OSHA may see the writing on the wall and no longer pursue enforcement of the ETS. That being said, there’s also a possibility that OSHA will pursue another avenue for implementing masking and testing requirements for COVID-19. During oral arguments on January 7 and in the opinion issued today, several justices suggested that a narrower ETS, such as one focused on particularly high-risk industries, might fall within OSHA’s authority.
Mark K. Cameron is an associate in the Labor and Employment Practice Group at Friday, Eldredge & Clark, LLP. His practice is focused on representing employers in litigation matters involving discrimination and Fair Labor Standards Act claims. He also works with non-profits on employment-related issues.
Disclaimer: The information included here is provided for general informational purposes only and should not be a substitute for legal advice nor is it intended to be a substitute for legal counsel. For more information or if you have further questions, please contact one of our Attorneys.