Thursday, January 13, 2022

BREAKING NEWS: SCOTUS dumps OSHA vax-or-test emergency temporary standard

The Supreme Court has issued its opinion in the appeal of the 6th Circuit's decision that vacated the 5th Circuit's stay of OSHA's vaccine-or-test emergency temporary standard for employers with 100 or more employees.

In a 6-3 decision, strictly down ideological lines, the Court reinstituted the stay, blocking the ETS from taking effect. 

The majority opinion and dissent run 30 pages and are a fascinating read. For most employers, however, that time would be wasted. 

Here's the key language.
Permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization.
What you need to know is that if your business has 100 or more employees you do not have to comply with the OSHA ETS unless and until the Supreme Court tells you otherwise (a highly unlikely outcome given the Court's opinion). In other words, the Biden administration's efforts to get more people vaccinated by encouraging vaccines through OSHA's emergency temporary standard powers is D-E-A-D. Also dead are the ETS's other requirements, including facial coverings for the unvaccinated and the removal of Covid-positive employees from the workplace. 

If you've already complied with the ETS and, as a result, some employees got vaxxed, then mission partly accomplished, OSHA. 

For the rest of the employers, just because these goals won't be accomplished by government fiat, however, does not mean that you cannot adopt common-sense Covid mitigation measures for your workplace. In fact, with Omicron surging to record numbers, hospitals at or over capacity, and health care workers stretched to their limit, I'd argue that such measures not only make sure for your business and the safety of your employees and others, but it's also our obligation to society as a whole,

To that end, I'll close with this statement by Justice Kagan from last week's oral argument:

This is a pandemic in which nearly a million people have died. It is by far the greatest public health danger that this country has faced in the last century. More and more people are dying every day. More and more people are getting sick every day. I don't mean to be dramatic here. I'm just sort of stating facts. 

And this quote from the dissenting opinion:

Over the past two years, COVID–19 has affected—indeed, transformed— virtually every workforce and workplace in the Nation. Employers and employees alike have recognized and responded to the special risks of transmission in work environments. It is perverse, given these circumstances, to read the Act's grant of emergency powers in the way the majority does— as constraining OSHA from addressing one of the gravest workplace hazards in the agency's history. The Standard protects untold numbers of employees from a danger especially prevalent in workplace conditions. It lies at the core of OSHA's authority. It is part of what the agency was built for. 

In light of those facts, what is your business doing to help contribute to the end of this public health crisis? If your answer is, "Nothing," or "We don't want to infringe on our employees' and others' 'freedoms,'" then I respectfully suggest it's time for some self-reflection and re-evaluation.