Supreme Court stays the OSHA ETS

After months of uncertainty, the Supreme Court has weighed in on the OSHA Emergency Temporary Standard (ETS). The vaccine or test rule for employers of 100 or more employees has taken a winding path to get to the Supreme Court since OSHA announced the rule in November 2021. After a nationwide stay from the U.S. Court of Appeals for the Fifth Circuit in November, the Sixth Circuit Court of Appeals caught many off-guard by lifting that stay just weeks before the holidays. An expedited appeal to the Supreme Court followed, with employers’ attention laser-focused on whether the court would reinstate the stay or if the rule would be allowed to go forward.

The Supreme Court resolved the issue on January 13, 2022, in a 6-3 opinion reinstating the stay. The court held that the employer groups challenging the rule were likely to establish that OSHA lacked authority to impose the vax or test rule. The court noted that the sweeping requirements of the ETS were no “everyday exercise of federal power.” Rather, the ETS “represented a “significant encroachment into the lives – and health – of a vast number of employees.” The Supreme Court said in such situations, Congress is expected to “speak clearly when authorizing an agency to exercise powers of vast economic and political significance.”

The court further noted that while the risk of contracting COVID-19 qualifies as a danger, it is not an “occupational hazard” in most workplaces. Meaning that COVID-19 can spread wherever people gather and it is no different from the dangers that individuals face on a daily basis.

Ultimately, the issue before the Supreme Court was whether a stay should be granted and the court determined that “the equities” justified reissuing the stay and halting implementation of the ETS. The Supreme Court returned the case to the Sixth Circuit Court of Appeals for further disposition on the merits of the case. While OSHA could pursue the case, that seems unlikely. In fact, the White House noted in a statement after the court’s decision that “it is now up to States and individual employers to determine whether to make their workplaces as safe as possible for employees.” This would seem to indicate that the Biden administration will not move forward with the ETS.

What employers should do now that the OSHA ETS is stayed

With ETS enforcement effective on January 10 before the reissued stay, many employers had implemented the required ETS policies and were focused on getting testing procedures in place. The question for employers is, now what? 

• Policies. With the ETS stayed, employers are no longer required to follow the various requirements stated in that rule. This means that requirements to collect vaccine status and proof, masking for unvaccinated employees, and, most significantly, weekly testing are no longer in effect. 

  Employers must now decide how to proceed with the policies that they rolled out before the reissued stay. Employers should clearly communicate to employees whether the policy is rescinded in whole or in part and what, if anything, will take its place. Unless prohibited by an applicable state law, employers can still implement policies requiring mandatory vaccine, testing and masking. Of course, such policies would not have the authority of a federal mandate. 
   

• Health & safety concerns. While the ETS is stayed, that doesn’t mean that OSHA can’t or won’t enforce safety violations related to COVID-19. Remember that even without the ETS, OSHA has broad powers under the General Duty Clause to require employers to provide a workplace that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” This means that simply rescinding ETS policies without new procedures to keep the workplace safe may still leave employers vulnerable to a visit from OSHA. 
   
• Confidentiality of medical information.  The ETS required employers to collect employee medical information in the form of vaccine status and proof of vaccination. That information is confidential medical information according the EEOC. That means that if employers keep that information, it must be maintained confidentiality and stored securely and separately from personnel files.
   
• Exemptions and reasonable accommodations. In response to the ETS’ vax or test requirements, many employers received medical and religious exemption requests from employees. With policies requiring vaccine, testing, and masking changing or being eliminated, employers will need to consider the status of reasonable accommodations and update employees since the circumstances surrounding the accommodations will likely have changed.
   
• Communicate. Every employer has employees on both sides of the COVID-19 vaccine divide.  The stay of the ETS should not be another reason for heightened workplace tensions. With COVID-19 still surging in many places, employers should communicate with employers about why the ETS-related policies are changing, what steps employers are taking to ensure a safe workplace, and what employees can do as well.  And, it never hurts to thank employees for contributing to a safe work environment. 

Implementing the policies and procedures to comply with the ETS took significant time and effort from employers. Unwinding those policies should also be a deliberate process that continues the focus on workplace safety and compliance. 

The McDonald Hopkins Labor and Employment Team is prepared to provide you with on-going insight and guidance on COVID-19 safety practices and compliance. Contact your McDonald Hopkins attorney for assistance or with any questions.