This afternoon, the U.S. Supreme Court issued a stay of the OSHA Emergency Temporary Standard ("ETS"), meaning it is on hold and employers now have decisions to make.
Here are the practical implications that employers need to know:
With the Court's ruling, the Court has implemented a stay (i.e. a temporary halt) in the enforcement of the OSHA ETS. For all intents and purposes, the rule is on life support for now. The Biden administration may try to reshape the rule and resubmit it or just withdraw it entirely.
For employers, that means that the ETS "vax or test" mandate does not need to be followed. That rule had a few different requirements including developing a vaccination policy, collecting the vaccination status of employees, and implementing either a mandatory vaccination program or a "vax or test" program. It also required unvaccinated workers to wear a face covering in the workplace. This would have applied to employers with 100 or more employees.
This does not mean that employers can't implement mandatory vaccination programs. In fact, the opposite is true. Employers still have wide discretion to implement such a rule (subject to considering exemptions for medical and religious reasons). Ultimately, many employers will still consider doing so, as a way to reduce lengthy absences and minimize workplace disruptions.
However, employers won't be able to use the OSHA ETS as the "excuse" or reason for doing so.
Employers should also feel free to consider a "vax or test" rule as well, allowing employees to test for COVID on a weekly basis in order to avoid being vaccinated. That type of rule can be implemented by private employers.
Of course, there may be other vaccine mandates that may be applicable to your workplace. Public schools and nursing homes are two areas that are now heavily regulated by the state. Thus, employers should check with their counsel to ensure that any particular mandates are being met.
The pandemic continues to burn and even though the Supreme Court has struck down the rule, there's still no reason employers cannot take other steps to ensure that workplace safety is of paramount concern.
Please note that the Supreme Court today reached a very different result for healthcare workers by upholding the federal government's vaccine mandate for health care workers.
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