Final ETS status unclear

In the information void remaining in the wake of the Supreme Court’s January 13 stay pending review of OSHA’s large employer emergency temporary standard (ETS) requiring vaccination or testing and masking, employers and state and local governments are left trying to anticipate the Biden Administration’s next move. Some private employers are pulling back on previously issued vaccine mandates, converting them into strongly encouraged vaccination endorsements instead. A coalition of states are pressing OSHA to withdraw the rulemaking, and Minnesota, which has an OSHA State Plan, has suspended enforcement of the ETS, which it adopted earlier in January.

OSHA ETS. Under the ETS, employers with at least 100 employees are required to develop, implement, and enforce a mandatory COVID-19 vaccination policy, or to instead adopt a policy requiring employees to either get vaccinated or elect to undergo regular COVID-19 testing and wear a face covering in lieu of vaccination. The ETS also requires employers to provide paid time off for workers to get vaccinated and to allow for paid leave to recover from any side effects.

OSHA has not yet indicated whether it will withdraw the rulemaking in response to the Supreme Court’s ruling. Reacting to the stay entered by the Court, Department of Labor Secretary Marty Walsh gave no indication that the agency would do so when he said: “The commonsense standards established in the ETS remain critical, especially during the current surge, where unvaccinated people are 15-20 times more likely to die from COVID-19 than vaccinated people. OSHA will be evaluating all options to ensure workers are protected from this deadly virus.”

Employer reactions. According to SHRM (the Society for Human Resource Management) research from late November, more than half (51 percent) of employers subject to the ETS were waiting to see how the current legal challenges would unfold before deciding on a vaccination policy. Most respondents to SHRM's survey—75 percent—said they were not likely to require vaccines or testing if the mandate is permanently struck down by the courts.

At Starbucks, a January 4, 2022 letter to employees indicated the company’s intent to comply with the ETS. In the aftermath of the Supreme Court stay, the company shifted, telling employees that it would comply with the Supreme Court’s decision. “While the ETS is now paused, I want to emphasize that we continue to believe strongly in the spirit and intent of the mandate,” states a January 18 letter to employees that Starbucks provided to Labor & Employment Law Daily.

In a January 18 update on its website, Starbucks said: “We strongly encourage all partners to get fully vaccinated for COVID-19 and boosted. Starbucks provides up to two hours of paid time off for partners to receive the vaccine, up to three doses, as well as up to 4 hours of paid time off if partners experience vaccine-related side effects and miss a scheduled shift within 48 hours of receiving the COVID-19 vaccine or booster.”

State AGs call for ETS withdrawal. A coalition of 27 State Attorneys General are now calling on OSHA to withdraw its interim final rule and request for comments (imposing the ETS) in light of the Supreme Court’s 6-3 ruling in favor of the states, trade associations, and others who had challenged the ETS and requested a stay of its enforcement.

In a January 19 comment letter on the ETS, the AG coalition wrote: “[T]he [Occupational Safety and Health] Act was designed to address dangers employees face at work because of their work—not dangers that are no more prevalent at work than in society generally. The United States Supreme Court agrees and held that the ETS—or any similar permanent standard for that matter—fails to address a unique workplace hazard and is therefore unlawful.”

Minnesota suspends enforcement. Minnesota, which has an OSHA State Plan applicable to both private employers and state and local governments, adopted OSHA’s ETS on January 3, 2022. The Minnesota Department of Labor and Industry has given notice that in light of the Supreme Court stay, MNOSHA will suspend enforcement of the ETS pending future developments.

“With the surge of disease generated by the Omicron variant still not at its peak, MNOSHA strongly encourages all employers to continue to implement the requirements of the ETS to protect employees from a hazard that too often causes death or serious physical harm” the state agency also said. “MNOSHA will continue to enforce all employers' obligations under the general duty clause and its general standards, including the Personal Protective Equipment (PPE) and Respiratory Protection Standards.”

Looking forward. It is currently unknown what OSHA will do as a result of the Supreme Court’s ruling. Employers should keep in mind that challenges to the ETS that are consolidated in the Sixth Circuit Court of Appeals and will continue to proceed, although the High Court has essentially signaled that the federal government is on very, very thin ice—so much so that it is unlikely to succeed on the merits.

However, that does not mean that employers are prevented from continuing any vaccination requirements they have already put in place, or from establishing vaccination and testing requirements in the future, so long as they comply with state and local mandates. Many private employers have already imposed mandatory vaccination requirements on employees. The Supreme Court’s ruling does not in any way give employees a green light to refuse compliance with those requirements, so long as they are consistent with state and local laws and regulations.

Employers generally continue to have the right to impose vaccination, testing, or masking requirements so long as they comply with any state and local requirements and provide exemptions as appropriate for disability-related or religious reasons.

Source: Written by Pamela Wolf, J.D.

From WCI's HR Answers Now ©2022 CCH Incorporated and its affiliates. All rights reserved.