SCOTUS Blocks OSHA ETS: What Does This Mean for Your Business?

On Thursday, January 13, 2022, the Supreme Court of the United States of America (SCOTUS) voted 6 to 3 to issue a stay on OSHA’s emergency temporary standard (ETS). The stay effectively blocks ETS from being enforced by OSHA at this time — and likely any time in the future.

While the court didn’t technically kill the ETS, which mandated employers with more than 100 employees require employee vaccination for COVID-19 or test regularly, it sent the ETS back to the 6th Circuit Court to continue the battle there. The 6th Circuit court is not expected to renew the ETS.

OSHA’s ETS was written as an emergency order, however, the language in the order from SCOTUS indicates that any final rule regarding a national mandate by OSHA is likely to be held unconstitutional if it applies to the nation’s 80 plus million workers as a whole.

The Supreme Court left open the door, however, for mandates by OSHA in specific high-risk industries which means OSHA could replace the ETS with either a targeted ETS, such as the healthcare ETS that the court upheld 5-4, or a permanent standard that applies only to those industries.
No matter the chosen direction, OSHA is likely to take an aggressive approach to enforcement, as they expect employers to develop their compliance policies already.

What can OSHA enforce when it comes to COVID-19?

While the ETS is currently invalid, OSHA’s mandate to keep workers safe from the effects of the pandemic isn’t.

“This is not to say that OSHA lacks authority to regulate occupation-specific risks related to COVID-19,” the SCOTUS stay says, citing crowded or cramped work environments. “Where the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are plainly permissible.”

Smart employers will ensure compliance with existing OSHA-related rules that can be enforced based on a business’ COVID-19 precautions, which include the following:

• OSHA COVID-19 National Emphasis Program went into effect July 7, 2021, seeking to ensure that employees in high-hazard industries or work tasks are protected from the hazard of contracting COVID-19. The NEP targets establishments that have workers with increased potential exposure to COVID-19, and that puts the largest number of workers at serious risk.

• OSHA Bloodborne Pathogen Standard went into effect in 2000 and prescribes safeguards to protect workers against health hazards related to bloodborne pathogens. The standard includes provisions for exposure control plans, engineering and work practice controls, hazard communication, training and recordkeeping.

• OSHA Respiratory Protection and General Duty Clause seeks to reduce the spread of occupational diseases caused by breathing air contaminated with harmful dusts, fogs, fumes, mists, gases, smokes, sprays, or vapors, with the primary objective of preventing atmospheric contamination.

COVID-19 is a respiratory hazard, which poses a significant liability to employers who don’t take steps to protect their workforce.

If employees are working in close proximity to each other and they aren’t protected, by sending them home when sick and enforcing masking in close proximity, the above standards will apply and OSHA will cite your business under these clauses. Worse yet, you can be sued. No business wants to be the test case.

4 best practices to follow when creating vaccine policies and procedures

Whether your business chooses to mandate, or suggest vaccination for employees, or neither, you’ll need a formal policy stating just that to reduce your liability should OSHA enforce any of the above standards, or your business is involved in a lawsuit.

Here are 4 best practices to follow when creating policies and procedures for your business around COVID-19:

01
Consult with appropriate legal counsel.

If your organization is considering a COVID-19 vaccination mandate. While employer-mandated vaccinations are federally legal, some states are moving in the opposite direction. In fact, multiple U.S. states have already passed legislation prohibiting these mandates, while over 140 bills on the subject have been introduced across the U.S.  Even if your state allows a vaccination mandate, know the exceptions to the rule in order to prevent creating policies that can be deemed discriminatory. Some employers are also already finding the implementation of vaccination programs to be tricky, the potential to cause litigation down the line. State run OSHA programs, such as in California and Minnesota, may have regulations similar or exceeding those of the OSHA ETS. Those remain unaffected by the SCOTUS ETS ruling and employers in those affected states should continue to implement compliant policies and procedures.

02
Incorporate a strong educational component into your vaccine program.

People respond better to information rather than dictation.  For those opting to encourage rather than mandate, building a strong education program around the vaccination process is a strong first step. The CDC and OSHA provide multitudes of resources for employers on how to educate their workforce on the importance of vaccination, from Building Confidence in COVID-19 Vaccines and How to Protect Yourself and Others by the CDC.

03
Make it easy for the employee. 

Whether this means offering an incentive to get vaccinated, or providing an onsite vaccination program, there are many ways employers can make the process easier. Consider offering incentives that encourage vaccination, including free childcare and paid time off during vaccination appointments, gift cards, and even cash. If you’re considering offering an incentive, include legal counsel in the planning process as there are limitations under the Americans with Disabilities Act of 1990 (ADA). Even while making it easier for employees to get vaccinated, make sure you do not create a hostile environment alienating those who choose not to or cannot.

04
Develop clear, executable policies and procedures. 

Make sure policies and procedures are clear, executable, and communicated to both full-time and temporary workers. According to the CDC, both the staffing agency and host employer are responsible for providing and maintaining a safe work environment for contractors and temporary employees, so make sure you include them in all company updates and communicate with the staffing company to understand their own requirements.

Smart businesses protect their people

Ultimately, employers have the flexibility to choose what’s best for them, without the federal government citing them. And yet, the pandemic isn’t going away. It’s still smart business to protect your employees — and your business — by having vaccine policies and procedures in place.