On Friday, January 7, the US Supreme court heard oral arguments in the cases challenging the OSHA COVID Vaccination and Testing Emergency Temporary Standard (ETS) and the Centers for Medicare and Medicaid Services (CMS) Rule (which mandates vaccines only). The federal contractor case will not be heard until sometime in February, unless the decisions in the cases heard Friday somehow dispose of that case, as a practical matter.
During the arguments Friday, it looked like the court might issue an administrative stay to give itself time to read all the briefs and other material, and the US Solicitor conceded that would be appropriate. Justices are not supposed to act as attorneys in the case or introduce new evidence, but Justice Stephen Breyer followed up by saying that he read there were 750,000 new cases on Thursday and asked the US Solicitor whether there would be a risk of 750,000 more cases each day an administrative stay was in place. The US Solicitor said yes, and then reversed her concession about an administrative stay.
Given the complexity of the case, we will not see a decision on the merits of the case this week. Since there is currently no stay, pending the court’s decision, it appears that the ETS requirements that were slated to take effect Monday, January 10, will need to be put into place by employers with 100 or more employees.
The US Solicitor (incorrectly) said, all that is required under the ETS on January 10 is that unvaccinated individuals need to wear a mask and then employers need to start getting their records and policies in place. This is not a correct statement about the ETS requirements. The standard also mandates that employers have collected vaccination proof on all workers by January 10; start vaccine paid leave and paid leave for time off to recover from the vaccine; implement a policy, and conduct employee education regarding the benefits and safety of vaccination. Under the ETS, OSHA stated January 10 as the deadline (not the starting line) for these actions.
What Should Employers Do While the Supreme Court Deliberates?
There has been a significant increase in COVID-19 cases. Every employer with more than 100 employees has at least one employee, unhappy about people who refuse to be vaccinated and/or have a medical condition which makes them worried about their safety. As a result of the increase in cases, there will be complaints to OSHA. It is unlikely the Supreme Court will suggest OSHA cannot enforce masking. So, even if the court strikes down the vaccine and testing mandates, OSHA could still issue a citation under the OSHA general duty clause, for not requiring masks consistent with CDC guidance.
There is wide opinion in the media that the OSHA ETS will vacate, based upon the Supreme Court ETS hearing. Many employers may be inclined to wait and see. However, the one thing that should not wait, is the mask requirement for anyone that has not provided the employer proof of a full vaccination (proof of boosters is not currently required). The US Solicitor made clear this item needs to be in place as of January 10.
OSHA was issuing citations for not requiring unvaccinated employees to wear masks before the ETS was issued, and they are likely to continue that policy regardless of the Supreme Court action on the ETS. The current CDC guidance calls for masking everyone (regardless of vaccine status) in areas of significant or high incidences of new cases (which is the entire country). However, OSHA can only cite cases where unvaccinated workers are not wearing masks, since its standard requires masks for unvaccinated employees only.
How We Can Help
Michael Best can help make sure your approach is both within the law and aligned with your organization’s needs and culture. Our Vaccination Policy Tool Kit is designed to cut through the confusion and empower you to make informed decisions. It provides practical advice and templates to help employers create their own workplace vaccination approach. We have updated it to address these deadlines, and will continue to update and notify subscribers with revised policies, forms, and communications as future developments occur.
Check out our COVID-19 Vaccination Policy Tool Kit!
Here is a Vaccination Education developed by our Best Workplace Solutions (HR Consulting) Team as part of that Tool Kit which can be tailored for your company by the Solutions team.
If you need assistance setting up your policies, testing process, employee benefits, document management our COVID 19 response team is here to help.
Preview Attorney's Biography
Chuck is a go-to lawyer for complex cases involving OSHA, employment law, labor negotiations, independent contractor and joint employment matters. Clients rely on his years of experience in dealing with state and federal enforcement agencies to develop human resource, safety and environmental policies and practices that prevent problems and save them significant expense. Chuck has defended employers in more than 1,000 Occupational Safety and Health Administration (OSHA) citation cases over the past 26 years.