January 14, 2022
The Supreme Court’s decision to block the vaccine-or-test rule leaves employers with the prospect of having to face a patchwork of differing state and local COVID-19 vaccine and safety standards, and potentially new OSHA regulations on an industry-by-industry basis.
With ETS likely dead, more OSHA rules to come? The case will still go back to the Sixth Circuit for a full ruling on the merits of the ETS, but there is little to suggest the Sixth Circuit would not follow the Supreme Court’s lead and permanently invalidate the rule. Nevertheless, OSHA may seek to replace this broad ETS with several smaller rules that target specific industries or workplace conditions for vaccine mandates or similar heightened COVID-19 safety standards, an approach the Court’s decision stated was “plainly permissible”.
Further, multi-jurisdictional employers face the prospect of a growing multitude of state and local vaccine mandates and/or other COVID-19 safety standards. Several states have already instituted vaccine mandates for certain industries, and last month New York City became the first jurisdiction to institute a vaccine mandate for all private sector employees. Conversely, states such as Florida, Tennessee, and Montana have moved to enact restrictions on vaccine mandates and other similar COVID-19 workplace infection protocols.
Such a patchwork creates significant compliance issues for larger employers akin to what they already face on paid leave, and inhibits the enactment of uniform COVID-19 safety standards and policies.
HR Policy issued a statement following the ruling, noting “HR Policy Association and its members understand the importance of widespread vaccination and testing to eradicate or reduce the spread of COVID-19. Although the ETS was blocked by the Supreme Court, HR Policy members will continue their commitment to providing safe workplaces for their employees as well as health care, leave, and other benefits to support those who become ill.”
Meanwhile, the Court cleared the CMS rule requiring vaccines for health care providers receiving Medicaid and/or Medicare funding. The rule, which does not allow for employee testing (other than narrow exceptions) had been temporarily blocked in 25 states but will now be enforced nationwide. Covered employers should ensure they are prepared to comply by January 22, the date upon which CMS-contracted surveyors will begin monitoring for certain levels of compliance. CMS has issued guidance for covered employers detailing the three-phase compliance rollout.
Outlook: Even in the absence of a federal vaccine mandate, employers can continue to implement and enforce their own vaccine mandates if they choose to do so—something that so far has largely been consistently upheld by various courts. In the months ahead, employers should prepare for the possibility that OSHA may issue new rules for specific industries, while also remaining vigilant as to what jurisdictions in which they do business may enact in this area. The next major Supreme Court decision regarding COVID-19 is likely to deal with the federal contractor vaccine mandate, which was suspended nationwide by the 11th Circuit Court of Appeals.