The Supreme Court has stayed OSHA from enforcing its vaccine-or-test rule for large private employers. In its opinion, the Court found that Congress did not grant OSHA the authority to issue such a sweeping rule. Empowered to issue a workplace safety rule? Yes. But, according to the Supreme Court, OSHA did not impose such a rule; instead, it attempted to impose a broad public health measure, which the Court considered outside of the agency’s purview. In short, as the Court noted: “imposing a vaccine mandate on 84 million Americans in response to a worldwide pandemic is simply not ‘part of what the agency was built for.’”
Apart from the OSHA vaccine rule for large private employers, the Court also issued a second decision allowing a vaccination requirement to go into effect for health care workers at facilities that receive federal funding through Medicare or Medicaid programs. A third Biden Administration vaccination rule – the federal contractor vaccination mandate – remains blocked via a nationwide injunction, and may also end up before the Supreme Court in the near future.
So what’s next for employers that the OSHA vaccine rule covered?
Employers that were planning to implement an OSHA-compliant policy only if the agency’s rule survived may hold off indefinitely on any implementation efforts. Employers that have already implemented a vaccination policy (whether in response to OSHA, other mandates, or as an elective safety measure) may continue to do so if desired, provided their policy does not violate any limitations set by applicable state or local law. A patchwork of laws have taken shape over the past few months limiting employers in some jurisdictions from imposing overarching vaccine or testing mandates. Conversely, some employers will be required to move forward with a mandate in some jurisdictions. For example, as described here, employers in New York City are still required to confirm workers’ vaccination status before permitting entry into their workplace.
There is also the question of how OSHA will respond to the Court’s decision. In a statement responding to the Court’s decision, the Secretary of Labor noted that “OSHA will be evaluating all options to ensure workers are protected from this deadly virus,” and 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 [OSHA’s] General Duty Clause.” Given the rule’s “emergency” status, by April 2022, the agency would have otherwise been required to decide whether to make the vaccine rule permanent, whether to modify it or whether to withdraw it altogether. In light of this latest development (and surging COVID-19 cases), will OSHA work to issue new, more limited COVID-19 workplace safety related regulations, or rely on its General Duty Clause, as suggested, to create workplace safety expectations around COVID-19? More limited or fine-tuned regulations could have the Supreme Court’s backing – its decision noted that rules governing certain, more hazardous jobs or workplaces may pass muster: “[w]here the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are plainly permissible.”
And how will states and local authorities respond? Will more jurisdictions issue their own OSHA-like regulations (like New York City did recently, as noted above)? In a concurring opinion, three members of the Supreme Court majority noted that state and local authorities have wide latitude to impose measures to fight the pandemic, and to date, the Court has not struck down state and local vaccine mandates.
Even before the OSHA rule came into existence in November 2021, employers were thinking carefully about whether implementing a vaccination policy was right for their business. For reference, recent employee surveys appear to indicate that the rate of employer vaccine mandates has held relatively steady since the fall of 2021 – at about 35-40%. Will this number climb with the emergence of the Omicron variant? Or will it continue to plateau or even fall as the pandemic continues (and trends towards endemic)? Industry trends, workplace safety and worker health considerations, retention and hiring dynamics, accommodation issues, and differing philosophies may all help inform businesses’ decisions on such mandates.
We recommend employers consult with outside counsel as they weigh these important decisions.