On January 13th the Supreme Court prevented, by a 6-3 margin, the enforcement of the Occupational Safety and Health Administration’s (OSHA) COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS). This would have required all employers with 100 or more employees to introduce a vaccine mandate.
This is just the latest development in the vaccine mandate story which will likely have left many employers confused about what they do and do not have to do to meet government requirements.
Below are four big questions that have come to light after the decision on OSHA’s ETS as well as the impact it has on employers.
What does this mean for employers?
First and foremost, this decision on vaccine mandates does not ban employers who have already implemented a policy, which followed OSHA’s ETS, from continuing to enforce it. However, employers must check with their specific state governments to ensure that they stay within their laws with no ETS in effect. Currently, 25 states require vaccination for employees, while 13 states have banned vaccine mandates. So, while there is no countrywide law to follow the best course of action for employers is to find out the state rules.
If an employer had set up to impose vaccine checks on employees but wishes to stop because of the Supreme Court OSHA decision, then they can do that now. However, as explained below this might not be the end of the ETS.
Employers who had been looking to set up a vaccine mandate can still voluntarily do so. In this situation, they can follow the ETS or use a framework that potentially better suits their needs. The key here is the same as above, check with state laws to find out exactly what is allowed to be established as a policy. Again, it is worth noting that this decision might not be the end of the ETS so monitor the situation as it develops.
Do employers need to destroy vaccination data already gathered?
The decision on OSHA’s vaccine mandates does not require employers to destroy already gathered data. Making sure that this data is secure and protected in line with the various state and federal data protection legislation is important though. As long as an employer is capable of safely storing this information then it could be helpful to maintain these records. With this situation not going away anytime soon and some states approving them anyway, it could be in an employer’s best interest to maintain this data. Especially, if the OSHA ETS is passed by the Sixth Circuit or Supreme Court review. Until the vaccine mandate case is closed it would be prudent to preserve any data gathered about employee vaccine status.
Is this decision final?
This is not the final decision on OSHA’s ETS, although the Supreme Court has voted against it. The Sixth Circuit will now look at why vaccine mandates were opposed and decide if there is a chance of an appeal. As the case is passed between courts the situation will continue to develop. Employers should keep a close eye on how it progresses. It is evident by Secretary of Labor Marty Walsh’s comments that OSHA does not want the ETS to go away anytime soon.
Secretary Walsh said: “We urge all employers to require workers to get vaccinated or tested weekly to most effectively fight this deadly virus in the workplace. Employers are responsible for the safety of their workers on the job, and OSHA has comprehensive COVID-19 guidance to help them uphold their obligation.
“Regardless of the 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.”
If it eventually passes, what will employers be required to do?
If the ETS passes and vaccine mandates are made a requirement then all employers would need to be in line with its rules. The key aspects of OSHA’s ETS are that employers would need to develop a mandatory COVID-19 vaccination policy. They could also enforce a policy allowing employees to either get vaccinated or to undergo weekly testing and wear a face covering at work. Employers would need to determine the vaccination status of each employee and maintain these records. The full list of requirements is listed here.
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