U.S. SUPREME COURT STAYS OSHA VACCINATION AND TESTING ETS PENDING FURTHER LITIGATION
As we have previously advised, the Occupational Safety and Health Administration (OSHA) promulgated an Emergency Temporary Standard (ETS) requiring private employers with 100 or more employees to implement policies requiring employees either to be vaccinated, or to choose between being vaccinated or subjecting themselves to regular COVID-19 testing and wearing a face covering at work. As you may have heard, the United States Supreme Court ruled yesterday to stay the OSHA ETS, pending disposition of the litigation currently before the Sixth Circuit and any appeal to the Supreme Court thereafter. Technically, this is not the final nail in the coffin for the OSHA ETS; however, it is a good indication of what the Supreme Court will do if and when the ETS is before it again.
This means the OSHA ETS will not be enforced while litigation is pending. It does not mean employers have no COVID-related safety obligations under the Occupational Safety and Health Act (OSH Act). They are still subject to the General Duty Clause, which imposes on employers the duty to provide employees with “employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to [their] employees.” Following the Supreme Court ruling, OSHA urged employers to require workers to get vaccinated or tested weekly and stated that “[r]egardless of the ultimate outcome of these proceedings, OSHA will do everything in its existing authority to hold businesses accountable for protecting workers, including under the Covid-19 National Emphasis Program and General Duty Clause.” OSHA reminded employers that it has comprehensive COVID-19 guidance to help employers fulfill their General Duty obligations. Keeping an OSHA-ETS-compliant policy in place regardless of the Supreme Court’s ruling could help an employer meet its obligations under the General Duty Clause, although there is no guarantee that doing so will be enough. OSHA made it clear that its adoption of the ETS “[did] not mean that vaccinated workers do not face a significant risk from COVID-19, or that the OSH Act’s [G]eneral [D]uty [C]lause poses no obligation on employers to protect their vaccinated workers from COVID-19. Indeed, symptomatic infections can occur in fully vaccinated people, and COVID-19 therefore poses at least some risk to vaccinated workers.”
Of course, Florida employers also need to consider Florida’s vaccine mandate ban statute. The mandate ban requires employers who choose to require vaccination to offer five types of exemptions: (1) medical reasons; (2) religious reasons; (3) pre-existing COVID-19 immunity; (4) an agreement to undergo testing; and (5) an agreement to wear employer-provided PPE. Fla. Stat. § 381.00317. Notably, the statute only applies to “vaccination mandate[s],” which it does not define. Many employers, in anticipation of the enforcement of the OSHA ETS, may have implemented a policy that allows employees the choice to get tested and wear face coverings instead of being vaccinated without having to show they are entitled to any exemption. Such employers may be able to stay the course in terms of providing employees with the option to be vaccinated or test weekly and wear a face covering. However, there is no guarantee doing so will be free from a legal challenge, and a violation under the Florida vaccine mandate ban imposes hefty fines of $10,000 per violation for employers with fewer than 100 employees and $50,000 per violation for employers with 100 or more employees.
Trenam Law’s Employment Law Group is happy to assist employers in evaluating their particular obligations under the OSH Act.