In a 6-to-3 decision on January 13, 2022, the United States Supreme Court has pressed pause on OSHA’s ability to enforce its Emergency Temporary Standard (ETS) that would require businesses with 100 or more employees to mandate COVID-19 vaccinations or weekly testing for most workers. The Supreme Court’s highly anticipated decision came just six days after the Court held a Special Session to hear oral arguments in the case and three days after OSHA began enforcing the ETS.
OSHA’s launch of the ETS has been rocky from the moment it went into effect on November 5, 2021. As FMJ previously reported, lawsuits challenging the ETS were filed almost immediately thereafter. Of particular relevance, on December 17th, a Sixth Circuit panel of judges lifted a temporary nationwide suspension previously issued by the Fifth Circuit. OSHA resumed its plan for implementing the ETS and advised employers that the agency would begin enforcing the regulations in two phases, starting on January 10th.
Challengers of the ETS moved up the judicial ladder and petitioned the U.S. Supreme Court to reinstate the suspension on enforcement while the case is still being adjudicated. The Supreme Court heard oral arguments from counsel for both the government and the challengers on January 7th. On January 13th the Court issued its decision granting the challengers’ petition, and paused enforcement of the ETS once again, pending further action in the case. While some news headlines seem to suggest that the ETS has been blocked or struck down entirely, it is important to clarify that the Supreme Court’s decision merely prevents OSHA from enforcing the ETS while the parties return to the Sixth Circuit to continue their battle over the regulation’s validity.
Bear in mind that the OSHA ETS is one of three major federal vaccine regulation efforts. Healthcare employers should be aware that the Supreme Court issued a separate opinion on January 13th, which effectively cleared the path for the U.S. Centers for Medicare & Medicaid Services (CMS) to move forward with a vaccine mandate for certain workplaces in that industry. Meanwhile, the vaccine mandate for federal contractors is subject to a suspension on enforcement, pending decisions in multiple U.S. Courts of Appeals cases.
Aside from the federal vaccine-related regulations, businesses may still be subject to requirements imposed by state, county, and/or local governments, including those pertaining to masking, social distancing, or other protocols. In some U.S. cities, including Chicago, NYC, Minneapolis, and St. Paul, among several others, certain businesses (such as food and beverage establishments, entertainment venues, gyms, and others) may need to implement policies requiring most patrons to show proof of fully vaccinated status in order to enter the premises. Only a few of those cities, including Minneapolis, St. Paul, and a couple of others, allow patrons the alternative option to show a negative COVID-19 test upon entry.
It is also important to keep in mind that many states, including Minnesota, maintain their own OSH Plans. All such plans were required under the original terms of the OSHA ETS to either adopt the ETS in full or implement a similar regulation containing terms that were at least as protective as those set forth in the ETS. Minnesota OSHA had adopted the ETS by reference on January 3rd but is suspending enforcement of the same in light of last week’s developments at the Supreme Court. Employers should continue to monitor the regulations in each state where they do business in order to remain compliant with any state-specific OSH Plan regulations.
As for federal OSHA, according to a statement issued by Department of Labor Secretary Marty Walsh on January 13th in response to the Supreme Court decision, the agency does not plan to sit idly by while the case returns to the Sixth Circuit for further adjudication. Secretary Walsh stated, among other things, that regardless of whether or not the government ultimately prevails in court, “OSHA will do everything in its existing authority to hold businesses accountable for protecting workers, including under the COVID-19 National Emphasis Program and General Duty Clause.” Given that OSHA has cited employers for COVID-19 hazards under its existing regulations throughout the pandemic, this statement could signal the agency’s intent to increase its efforts with respect to the COVID-19 safety guidelines that are already in place.
Our team is closely following new developments surrounding the ETS and other vaccination-related regulations and is available to answer your questions or assist with policy recommendations as needed. Please contact Shannon McDonough at shannon.mcdonough@fmjlaw.com, Heidi Carpenter at heidi.carpenter@fmjlaw.com, or Natolie Hochhausen at natolie.hochhausen@fmjlaw.com to discuss how we may be able to assist your business.
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