What's next for businesses following stay on OSHA's vaccine rule?

In a highly anticipated 6-3 ruling, the Supreme Court of the United States (SCOTUS) issued a ruling granting a temporary stay of Occupational Safety and Health Administration’s (OSHA) vaccine or weekly testing emergency temporary standard (ETS) for private businesses.

Although SCOTUS has issued only a temporary stay of the ETS and has not officially decided the case on the merits — that task now lies with the United States Court Appeals of Appeals for the Sixth Circuit — the final fate of the ETS seems grim.

In its opinion blocking the ETS, SCOTUS very clearly signaled that OSHA overreached. Referring to the ETS as a “blunt instrument,” the high Court stated: “[A]lthough Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly. Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category.”

Given these strong proclamations from SCOTUS, it seems unlikely that the Sixth Circuit will reach a different conclusion.

What does this mean for private businesses covered by the ETS?

Private employers that operate in one or more of the 29 states and territories covered by federal OSHA can breathe a sigh of relief and suspend their efforts to comply with the ETS. Particularly for larger employers faced with a high volume of requests for religious and medical accommodations, and implementing a weekly testing policy in the midst of a test supply shortage, the SCOTUS ruling effectively gives businesses permission to shut down their ETS compliance plans.

For some private businesses, however, this relief may be temporary. Although SCOTUS blocked the ETS, SCOTUS conceded that a more targeted ETS or OSHA rule could survive a legal challenge, emphasizing “[w]here the virus poses a special danger because of the particular features of an employee’s job or workplace,” such as “researchers who work with the COVID-19 virus” or “risks associated with working in particularly crowded or cramped environments.”

OSHA could begin a formal rulemaking process, incorporating a more targeted “vaccine or test” mandate for some businesses. A revised mandate, if there is one, will likely draw additional legal challenges. So while businesses can comfortably suspend compliance efforts, businesses should stay tuned in for OSHA’s next move.

What about private businesses that are NOT covered by the ETS?

With this SCOTUS ruling, states with OSHA-approved State Plans are no longer required to adopt rules that are at least as effective as the ETS. However, for a few reasons, private businesses in these states should still monitor state law.

First, as a general rule, states can issue their own vaccine or testing mandates. As of right now, no state has done so, but that doesn’t mean a state won’t take matters into its own hands by instituting vaccine or testing mandates, since mandates imposed at the state level are more likely to survive a legal challenge.

Local governments may also issue mandates, and so far at least one local government has done so. New York City issued a vaccine mandate for private businesses which took effect on December 27, and no challenges to that mandate are being reported. Whether other states and localities will issue mandates remains to be seen.

Conversely, states can issue vaccine and testing bans or restrictions, and several already have. Alabama, Arizona, Arkansas, Florida, Iowa, Kansas, Montana, North Dakota, Tennessee, Texas, Utah, and West Virginia have already issued orders or passed laws banning or restricting the ability of private businesses to impose certain COVID-19 related policies. So private businesses operating in one or more of those states need to check state law to ascertain whether and the extent to which they can implement any COVID-19 related mandates.

Can private businesses implement a vaccine or testing mandate despite the SCOTUS Ruling?

In 2021, the U.S. EEOC and the Department of Justice both issued statements confirming that private businesses can issue vaccine mandates, and the SCOTUS ruling does not impact the EEOC and DOJ pronouncements. The subject of the OSHA ETS challenge was whether the OSH ACT gives OSHA the authority to implement a broad vaccine or test mandate, not whether private businesses can impose vaccine and testing mandates. As such, private businesses generally remain free to implement such mandates, including ones that mirror the doomed ETS, as well as other COVID-19 safety protocols.

However, businesses need to be mindful of state law, particularly in those states which have imposed vaccine bans or restrictions. As previously noted, some states have already imposed vaccine bans or restrictions. So private businesses operating in one or more of those states need to check state law before implementing any mandates.

Businesses should still implement some COVID-19 safety precautions

Regardless of where a business is located, all private businesses should consider taking (or continuing) some COVID-19 safety precautions, particularly in light of the current spike.

In the wake of the SCOTUS ruling, OSHA has already issued a statement that it will use the OSH Act’s General Duty Clause, which covers all employers, and the COVID-19 National Emphasis Program, for its COVID-19 related safety enforcement efforts. Prudent employers will follow OSHA’s COVID-19 Guidance to determine the most effective and sensible safety protocols for their workforce.

Kelley Barnett is a labor and employment attorney for AmTrust Financial Services. She is the key legal and business advisor to the AmTrust executive team and AmTrust businesses in the U.S., U.K. and Europe on employee relations matters. Prior to joining AmTrust, Kelley’s private practice included counseling and representing employers, contractors, subcontractors, project owners and property owners on a wide variety of OSHA issues including training, compliance, OSHA inspections, accident investigations and OSHA and OSHA-approved State Plan enforcement proceedings. Kelley is also OSHA 30 certified.

Opinions expressed here are the author’s own.