What’s Next after Supreme Court Issues Stay of OSHA’s COVID-19 Workplace Vaccine Standard

On January 13, 2022 the Supreme Court issued a decision to temporarily block OSHA’s COVID-19 Vaccination, Testing, and Face Coverings emergency temporary standard (ETS) that applies to employers with at least 100 employees. Here is a link to the opinion of the Court.  As a result, the enforcement of the ETS has been halted and employers no longer need to determine each employee’s vaccination status and requiring unvaccinated employees to wear face coverings and be subject to weekly COVID testing.  On January 25, 2022, OSHA withdrew the ETS, effective immediately.

Immediately following the Supreme Court decisions to stay the ETS, the Department of Labor issued the following statement warning employers that they are still obligated to keep workers safe from COVID-19 in the workplace:

Employers are responsible for their workers’ safety on the job, and OSHA has comprehensive COVID-19 guidance to help them meet that obligation.  Regardless of the outcome of these proceedings, OSHA will do everything in its authority to hold businesses accountable for protecting workers, including under the COVID-19 NEP [National Emphasis Program] and General Duty Clause.

In fact, on the day after the Supreme Court decision, OSHA issued a citation under the General Duty Clause alleging that the employer “did not enforce the employer-developed COVID-19 prevention policy of wearing face coverings within the facility.  Employees worked and congregated in close proximity without face coverings or without wearing face coverings over nose and mouth, as recommended by the Centers for Disease Control and Prevention (CDC), leading to exposures among unvaccinated employees.”  A a result of the employer’s failure to take immediate and effective steps to identify, inform, and remove all potentially exposed employees, a total of eighty-eight employees tested COVID-19 positive in the establishment and one employee died of COVID-19 complications. The employer was ordered to correct the violation and the proposed penalty was $13,523.

OSHA may also choose to develop more targeted COVID-19 rulemakings that would be consistent with the Supreme Court decision.  For example, OSHA could identify specific COVID-19 workplace hazards for an industry or group of industries, and propose requirements to address those specific workplace hazards.

Other sources of potential COVID-19 vaccine mandates and restrictions in the workplace could come from state and local governments and private employers.  The Supreme Court indicated in its opinion that unlike OSHA, state and local governments may have the authority to impose broader COVID-19 workplace restrictions.  Private employers can mandate vaccines for employees and impose additional restriction on unvaccinated employees.  Several companies have already chosen to impose such requirements on its employees.

As a result, the status of workplace restrictions for COVID-19 will remain in flux in the next few months.  While not having to enforce vaccine mandates and impose specific requirements for unvaccinated employees, employers are obligated to keep employees safe in the workplace and to take necessary actions to protect its workers.  OSHA has already demonstrated its willingness to use existing authorities (such as the General Duty Clause) to enforce this obligation on employers.

NASF will continue to work with OSHA officials and industry coalitions on developments regarding COVID-19 in the workplace and provide updates to NASF members.  If you have any questions or would like additional information on this issue, please contact Christian Richter or Jeff Hannapel with NASF at crichter@thepolicygroup.com or jhannapel@thepolicygroup.com.

This update is courtesy of the National Association for Surface Finishing (NASF). For more information or to become a member, visit nasf.org.