COVID-19 in the Workplace- OSHA Hasn’t Gone Away

As previously reported, on January 13, 2022, the United States Supreme Court held that federal OSHA exceeded its statutory authority when it promulgated the COVID-19 Emergency Temporary Standard (ETS). What has been lost in some of the reporting is what the decision actually held, and what was excluded. As the U.S. Labor Secretary made clear on Friday morning, OSHA still intends to do everything in its ability to hold employers accountable for protecting workers from exposure to COVID-19 in the workplace.

The key point in the National Federation of Independent Business decision was the Court’s attention on “who” mandated the “emergency” rule requiring vaccinations. Despite what some have reported, the Court did not hold mandated vaccination could never be required. It simply decided Congress had not granted OSHA authority to adopt emergency standards of such all-encompassing scope. The Court’s rationale was that in our form of government, decisions on major issues such as mandated vaccination should be entrusted to elected officials, who are in turn accountable to the electorate. Despite the significance of threat or the necessary level of expertise, the power of administrative agencies and bureaucrats is limited, especially when an “emergency” is used as a way to bypass public input, review and comment. In doing so, the Court left open the issue of whether Congress had constitutional authority, or OSHA might be able to come up with a rule through the ordinary public input process, that required mandatory vaccination. And a majority of the Justices were clearly receptive to the proposition that a state currently could impose the exact same mandate OSHA was prevented from enforcing.

As it relates to COVID-19, employers will be prudent to pay attention to three specific areas. First, as it relates to OSHA (and state-specific plans), safety enforcement agencies still have tools to cite employers under either the general duty clause or the COVID-19 National Emphasis Program. Employers must remain diligent to be compliant with CDC guidance and all state and local health agency orders, as well as to take proactive steps under existing illness and injury prevention programs to ensure workers are not exposed to COVID-19 in the workplace. Second, employers must pay attention to what their state workplace safety agencies are requiring. As of January 14, 2022, the two states that had gone farthest to adopt rules similar to the ETS (Minnesota and Illinois) suspended enforcement of vaccination or test rules. At the same time, as transmission rates continue to be high, other states including California and Oregon are continuing to consider vaccination mandate rules. And third, OSHA continues the regulatory process to adopt a standard to address workplace exposure, including the possibility of mandated vaccinations or testing. That standard is due by May 5, 2022. Employers should ensure their elected officials (and OSHA) are aware of their concerns and input.

Employers with questions related to COVID-19 and the workplace following the ETS, or other questions related to employment law, should contact Philip Toomey.

Philip Toomey is Chair of the firm’s national Employment & Labor Practice Group, where he also leads the Public Sector Employment Group. He can be reached at 424.738.4400 or ptoomey@leechtishman.com.

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