What the Supreme Court decision on OSHA’s vaccine and testing rules means for employers

During the omicron variant's peak last month, employers and employees alike were left to question whether their workplace safety guidelines were sufficient enough to withstand another variant and another wave — and would it come with federal regulation on vaccinations and testing?

But after the Supreme Court voted six-three against a federal vaccine and testing mandate issued by the Occupational Safety and Health Administration, it became clear that workplace safety would be an employer’s responsibility, rather than the federal government.

“The message the Supreme Court sent was clear,” says Catherine Barbieri, labor attorney and co-chair of the National Labor & Employment Department at Fox Rothschild. “Employers are going to move forward with what they think is right for their workplaces, whether it’s vaccination policies, testing or neither of those things.”

Read more: What working parents stand to lose if the Build Back Better bill does not pass

OSHA’s emergency temporary standard would have required vaccine mandates and mandatory testing for any employer with 100 or more employees, within industries such as manufacturing, retail, delivery services, warehouses, meatpacking, agriculture, construction, logging, maritime and healthcare. In response, a majority of the Supreme Court determined the ETS to be far too general, acting as guidance on public health, instead of workplace safety and hazards specifically, where OSHA’s authority lies.

Carrie Cherveny, senior vice president of strategic client solutions and compliance at HUB International, says the Supreme Court decision was expected, given that OSHA’s regulations tend to be built upon job-specific analysis and hence, the requirements are specific to that job’s environment and tasks.

“[The Supreme Court] was clear that there certain jobs where the performance of the work itself carries a limited ability to shield employees from contracting COVID or other contagious viruses,” says Cherveny. “But it was also clear that OSHA can’t sweep the country with the same brushes, and say this rule applies to everyone in every circumstance.”

Cherveny notes that jobs with less ventilation or confined spaces may be an appropriate case for OSHA. “You're going to see a more targeted, more refined regulatory scheme around vaccines in the workplace,” she says.

Read more: For this CHRO, remote work has boosted connectivity and culture as her team weathers COVID

Barbieri adds that since Congress has not given OSHA clear authority to issue a regulation as broad as the ETS, it sets a precedent for public health authority. For instance, if there is another pandemic, and OSHA wants to enact mandates for employers nationwide, it may have to look to Congress first to expand its power.

“The likelihood that the ETS as currently written succeeding in a subsequent legal challenge is close to zero,” she says. “That doesn't mean OSHA can't potentially rewrite the ETS. It's very possible that OSHA will pivot to essentially trying to enforce workplace safety on an employer-by-employer basis.”

In other words, while the Supreme Court decision has led to OSHA withdrawing its ETS, this is not the last employers will hear on the matter. OSHA has even stated that the ETS will not be withdrawn as a proposed rule, which hints that revisions will be made in the coming months. The agency is also working to finalize a permanent COVID-19 Healthcare Standard, which focuses on protecting healthcare workers from COVID-related hazards. Meanwhile, OSHA still strongly encourages workers to get vaccinated.

While Cherveny recommends employers remain vigilant on the OSHA front, she also stresses staying on top of state and local regulations, which can vary greatly. For example, 13 states have banned vaccine mandates, including Arizona, Florida and Texas, and another 25 states require vaccine mandates for employees of various categories, namely healthcare workers. Additionally, mask requirements can differ from city to city. The Atlanta mayor Keisha Lance Bottoms reinstated a mask mandate in December, but Georgia does not have a statewide mandate in effect.

Read more: Paychex and HireRight are bringing COVID tests to companies in need

“It’s like a game of whack-a-mole — employers have to keep up with the county, the city and the state,” Cherveny says. “The federal regulation would have been one rule. Now employers have traded one set of complications for another.”

Still, Barbieri has found that some of her clients are relieved the ETS did not pass, stating it would have been burdensome to enact a testing program within the workplace. Not to mention, vaccine mandates may have made recruitment and retention more challenging, especially in today’s competitive labor market.

“While a number of our clients are proceeding with mandatory vaccination policies, there are clients who are doing away with testing,” says Barbieri. “But it does make it a little more challenging for employers that would like to implement and enforce vaccines and testing if they don't have a federal requirement.”

While employers are rightfully stressed over the uncertainty and variability surrounding the ETS and local regulations, Cherveny encourages employers to get back to the basics of workplace safety. She asks the clients to stay up to date on OSHA’s and CDC’s general guidance and recommendations, which ask employers to give workers paid time off for vaccinations and recovery, implement physical distancing in communal workspaces and disinfect shared spaces at least once a day.

“From a litigation standpoint, you've got to ensure that you don't set yourself up for negligence lawsuits, and OSHA [requires] you to provide a safe working environment,” says Cherveny. “We've become a little desensitized to other safety components because we've all been so focused on vaccines. So my focus this year is for clients to get back to the basics of employment law, HR basics and safety basics.”