In a 6-3 decision, the Supreme Court reinstituted the stay blocking OSHA from enforcing its vaccine Emergency Temporary Standards ("ETS") on employers of 100 of more workers through the pendent litigation before the Sixth Circuit Court of Appeals. Essentially, SCOTUS determined that Congress did not give OSHA the authority to exercise such a broad power of vast economic and political significance. The majority distinguished between OSHA’s authority to regulate an occupational-specific risk and OSHA’s lack of authority to regulate everyday risk of contracting COVID-19 which we all face.
While employers no longer have to comply with the January 10, 2022 deadline, employers should nonetheless be vigilant regarding potential obligations. This is primarily due to the ETS being revived in its original or amended form in the future. First and while unlikely, the Sixth Circuit Court of Appeals could determine that the rule is valid and breathe new life into the rule. Further, OSHA could begin the formal rulemaking process that could see a formal regulation published on or before May 5.
How do employers remain prepared in the face of potential regulation? First, the most important step is to maintain administrative obligations, such as creating an employee vaccination status roster, developing vaccination or testing policies, and developing educational programs that would allow for the swift flow of information about policies to managers and employees.
Second, employers can determine whether they want to impose their own mandate in the workplace. SCOTUS did not curb an employer’s ability to impose its own vaccine mandate. While most employers can require employees to become vaccinated, employers should consider several factors before implementing such a policy. These factors include reflecting upon known concerns among the workforce regarding health and safety, taking into account the business environment, discussing compensation issues that might arise, ensuring your reasonable accommodation policy to address religious and disability issues is clear, and considering how employees and/or customers are likely to react to the policy.
Third, employers can independently create safety obligations for non-vaccinated employees, including testing requirements, masking requirements, social distancing rules, restrictions on business travel, and other company-specific work-environment regulations. These policies should be carefully thought through and in coordination with counsel.
Fourth, employers can offer vaccination incentives to any worker who can prove full vaccination status. Such benefits could include cash bonuses, gifts, or paid time off. If you offer incentives, the EEOC provides guidance to ensure your company does not implicate discrimination laws.
Employers should coordinate with their labor counsel to discuss implementing policies and procedures to ensure the health and safety of its workforce.
The content of this post is for informational purposes only and should not be construed as legal advice or legal opinion. You should consult a lawyer concerning your specific situation and any specific legal question you may have.