Comment on Supreme Court OSHA Decision

The Supreme Court’s decision introduces more uncertainty in a very uncertain time.

By Philip M. Berkowitz | January 14, 2022

Compliance personnel increasingly bring retaliation and whistleblower claims against their employers. Their job, after all, Since the beginning of the pandemic, many employers in the United States, out of concern for the safety and health of their employees, have required employees to be vaccinated, wear masks, practice social distancing, and otherwise take steps to assure workers that their workplace is safe. Employers have been challenged, though, by inconsistent state laws and executive edicts contrary to these requirements, as well as by protests by significant numbers (if a minority) of employees who have objected to these mandates, whether on religious, medical, or political grounds.

The OSHA emergency temporary standard (ETS) would require all employers with 100 or more employees to develop, implement, and enforce either a mandatory vaccine policy, or a policy requiring employees to elect either to get vaccinated or to undergo regular COVID-19 testing and wear a face covering at work. OSHA took the position that the mandate is required to protect unvaccinated workers from the risk of contracting COVID-19 at work.

The OSHA ETS has been repeatedly challenged in court, and its enforceability has been on-again and off -again, resulting in significant uncertainty in companies as to how to proceeds. Meanwhile, state governments have also imposed oftentimes inconsistent rules, either mirroring the ETS to some degree or banning vaccines altogether.

On January 13th, by a 6-3 vote (with three justices concurring), the Supreme Court stayed the mandate, holding that OSHA had grossly exceeded its statutory responsibility to preserve safe and healthful working conditions and regulate workplace safety. The court held that OSHA’s broad authority does not vest with what the court repeatedly referred to as an “unelected” federal agency, and that any broad authority to regulate health standards rests either with the individual states or with Congress.

If the societal wedge between those in favor of and those opposed to vaccine mandates and masking was not previously obvious, this decision throws that division into broad relief. We can anticipate that it will be applauded by many as a righteous rejection of government intrusion.

The problem for businesses, though, will be that rather than being able to rely on a single standard of practice across the country, they will now need to wait to see what state governments will or will not do in determining appropriate action to address this issue.

Despite the Supreme Court’s decision, no federal law prevents employers from imposing vaccine mandates, mask mandates, or testing. But in the absence of a federal mandate, companies are at the mercy of the fifty states, which can be expected to continue to issue inconsistent rules which may permit or prohibit, in whole or in part, policies of this nature.

There are numerous other issues that remain up in the air or subject to potentially conflicting federal and state law, including whether the employer needs to pay the cost of testing or the time it takes to obtain a test, whether employees must be paid for time off due to COVID, and the amount of time employees need to quarantine or isolate once they are sick or exposed to the virus.

And of course, issues remain around employees who decline to get the vaccine because of health issues or because they claim a religious exemption. Responding to these claims has been a continual challenge.

We will see where this goes, but the Supreme Court’s decision introduces more uncertainty in a very uncertain time.

Philip M. Berkowitz is a shareholder of Littler Mendelson and co-chair of the firm’s U.S. international employment law and financial services practices.


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Reprinted with permission from the January 14, 2022 edition of the New York Law Journal©

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