NGFA: What Comes Next After Supreme Court Decision to Block Vaccine Mandate?

Even though the Supreme Court blocked the federal COVID-19 vaccine mandate in its decision issued last week, the Sixth Circuit Court of Appeals and Occupational, Safety and Health Administration (OSHA) State Plans could still revisit the workplace mandate in the coming months.

Employers also should take note of several other regulatory avenues for COVID-19 workplace rules outlined in this article.

The Supreme Court issued its decision on OSHA's vaccine-or-test Emergency Temporary Standard (ETS) on Jan. 13.

By a 6-3 majority, the Court reinstated the stay that had been dissolved by the Sixth Circuit panel in December 2021.

It is important to note that the Supreme Court’s decision temporarily stays the rule pending the outcome of a decision on the merits by the Sixth Circuit Court and any subsequent petition for review of that decision to the Supreme Court.

With the ETS set to expire in May, it is unclear whether it will ever become law and again be enforced.

Below are some of the key points in the Supreme Court’s latest decision:

• OSHA exceeded its authority by trying to regulate a hazard that is not specific to the workplace; OSHA does not have authority to regulate public health.

• To allow this regulation to remain in place would significantly expand OSHA's authority with no limiting principle.

• Congress has not given OSHA specific enough authority to regulate such a broad hazard.

• The power to regulate this hazard rests with Congress and the states.

• The challengers are likely to prevail on the merits (a key requirement for issuing a stay).

Meanwhile, there are other tools OSHA could use to address the COVID-19 workplace safety issue.

For example, the agency will continue to conduct COVID-19-related inspections at worksites where employees have a high frequency of close-contact exposures.

Other avenues for COVID-19 regulations are outlined below.

State Plans: The basis of the court’s decision relates only to federal OSHA’s authority to regulate without a more clear delegation from Congress.

The ruling does not block states from issuing their own versions of a vaccination ETS.

There are currently 22 State Plans covering both private sector and state and local government workers, and there are six State Plans covering only state and local government workers.

State Plans are monitored by OSHA and must be at least as effective as OSHA in protecting workers and in preventing work-related injuries, illnesses and deaths.

Minnesota OSHA has been the only State Plan, at this point, to adopt the vaccinate-or-test ETS.

General Duty Clause: Importantly, the General Duty Clause of the Occupational Safety and Health Act and OSHA’s National Emphasis Program (NEP) for COVID-19 remain in effect.

While the ETS seems to have been put to rest by the Supreme Court, employers must continue to evaluate whether they are making reasonable efforts to protect their employees from pandemic hazards when measured against the multitude of various guidance from OSHA and the Centers for Disease Control and Prevention (CDC) for COVID-19 workplace protocols.

“Regardless 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 General Duty Clause,” stated Secretary of Labor Marty Walsh in a Jan. 13 press release.

Infectious Disease Standard: According to the Fall 2021 Semi Annual Regulatory Agenda published in early December, OSHA is “examining regulatory alternatives for control measures to protect employees from infectious disease exposures to pathogens that can cause significant disease.”

The agency is considering long-standing infectious disease hazards like tuberculosis and measles as well as new and emerging infectious diseases such as COVID-19 and pandemic influenza.

OSHA’s timetable indicates that the agency plans to issue a proposed rulemaking in April 2022.

As part of the Employers COVID-19 Prevention Coalition, the National Grain and Feed Association (NGFA) submitted comments to OSHA on Jan. 19.

In addition to recommending that OSHA terminate or suspend the ETS in light of the court’s ruling, the coalition also promoted cooperative programs and alliances in lieu of additional regulations and requested certain changes in guidance and expectations if OSHA proceeds with a different enforcement strategy moving forward.

Questions about the Supreme Court decision and related COVID-19 workplace regulations should be directed to Jess McCluer, NGFA’s vice president of safety and regulatory affairs.

— From the Jan. 21 NGFA Newsletter

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