Since its November 2021 publication, OSHA’s Emergency Temporary Standard (ETS) has been in the news and the courts. Initially, the ETS, also known as the “vaccine mandate,” required certain businesses with 100 or more employees to ensure those employees were vaccinated or underwent weekly COVID-19 testing by certain designated dates in 2022. However, last year, the Fifth Circuit Court of Appeals issued a nationwide injunction on the mandate. In December, the Sixth Circuit Court of Appeals dissolved the stay. Then, in January, the U.S. Supreme Court conducted a special hearing to review the Sixth Circuit’s decision and order and issued a ruling. Here is more on the recent Supreme Court development on OSHA’s vaccine mandate.
OSHA’s Emergency Temporary Standard
OSHA
The Occupational Safety and Health Administration (OSHA) is a federal agency that is responsible for ensuring that there are “safe and healthful working conditions.” The agency performs this duty by enforcing occupational safety and health standards pronounced by the U.S. Secretary of Labor.
OSHA’s standards must be “reasonably necessary or appropriate to provide safe or healthful employment.” In most instances, these standards are developed through a careful and detailed process that includes notice, comment, and an opportunity for a public hearing.
OSHA’s ETS
There is an exception to OSHA’s usual notice and comment procedures when there is a need for the agency to issue an “emergency temporary standard” (ETSs). These emergency standards are to be created in very limited circumstances.
To issue an ETS, the Secretary of Labor must show “that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards,” and (2) that the “emergency standard is necessary to protect employees from such danger.” Once published to the Federal Register, an ETS takes effect immediately.
OSHA’s Vaccine Mandate
OSHA published its vaccine mandate on November 5, 2021, as an ETS requiring covered employers to “develop, implement, and enforce a mandatory COVID–19 vaccination policy.” Following the publication, the ETS was challenged in federal court and was stayed, meaning OSHA could not enforce it. However, the U.S. Sixth Circuit of Appeals subsequently dissolved the stay.
The U.S. Supreme Court Reinstates the Injunction on OSHA’s ETS
On January 13, the U.S. Supreme Court issued a ruling that reinstated the injunction on implementing the ETS. In its decision, the court held that the Sixth Circuit went beyond what was allowed in implementing and enforcing the ETS. In addition, the court commented that the ETS constitutes an impermissible public health measure. However, the court also recognized that OSHA does have some authority to regulate specific risks related to COVID–19 as applied to certain occupations.
What Happens Next?
The Supreme Court sent the vaccine mandate case back to the Sixth Circuit for a hearing on the merits. After the lower court issues its decision, there could potentially be another appeal to the U.S. Supreme Court. However, the high court made comments in its January ruling that seem to indicate that it will not uphold future challenges to the current version of OSHA’s ETS.
Is the Vaccine Mandate Still in Effect?
In response to the ruling, OSHA has withdrawn the ETS as an enforceable standard. However, the ETS will continue as a proposed rule for a potential permanent standard in the future. For now, the agency continues to strongly encourage employers to support workforce vaccination and testing.
What Does This Mean for Employers?
Some businesses may choose to keep their ETS-compliant vaccination and testing policies in place, while others may elect to make changes or eliminate them all together. If an employer has a mandatory vaccine policy, it may choose to keep that policy or not. However, employers must also comply with state and local rules and mandates. Some employers are already making changes. Recently, corporate giant Starbucks announced that it will no longer require mandatory vaccines and testing for its workforce.
Testing shortages and exemption requests have been challenging for some companies. Therefore, this development may be welcome for entities that were struggling with ETS-related testing and documentation protocol implementation.
The future of OSHA’s ETS remains to be seen. However, it seems likely that a new version will be developed in the future. If you have concerns regarding OSHA’s vaccine mandate or vaccine-related protocol in the workplace, you should contact a Florida business attorney. Your lawyer can help you understand your obligations under the law and keep you up to date on new ETS-related developments.
Contact an Experienced Florida Business Lawyer
Attorney Richard Sierra at the Florida Small Business Center assists clients like you with business and litigation matters. As always, Our Goal Is to Help You Succeed™. For an appointment, you may call us at 1-866-842-5202 or use the contact form on our website. We represent clients throughout the State of Florida, including Coral Springs, Coconut Creek, Boca Raton, Delray Beach, Pompano Beach, Sunrise, Fort Lauderdale, Miami, West Palm Beach, Jupiter, Deerfield Beach, Stuart, Port St. Lucie, Orlando, Naples, Fort Myers, Sarasota, Tampa, and surrounding communities.