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With Supreme Court Decision Pending, OSHA Set to Begin Enforcement of Rule on COVID-19 Workplace Vaccination Policies Today

  • First deadline on OSHA rule requiring employers with 100 or more workers to establish COVID-19 vaccination policies arrives
  • Emergency temporary standard is being considered before the Supreme Court after conflicting rulings in the federal circuit courts
  • A second deadline, requiring workers eligible employers to either get vaccinated or submit to weekly testing, arrives Feb. 9

Summary by Dirk Langeveld

While a challenge to the rule remains under consideration by the Supreme Court, the Occupational Safety and Health Administration is set to begin enforcement of an emergency temporary standard directing employers with 100 or more workers to establish COVID-19 vaccination policies. However, the pending legal challenge could mean that the agency will take a light touch with any early enforcement actions.

The emergency temporary standard requires that qualifying employers take steps such as keeping a roster of employees’ vaccination statuses, requiring unvaccinated employees to wear a face covering when working with others, and providing paid time off for employees to get vaccinated. OSHA originally set the deadline for compliance with these provisions for Dec. 5, though implementation and enforcement was suspended after the U.S. Court of Appeals for the Fifth Circuit placed a stay on the rule. After a judicial panel of the U.S. Court of Appeals for the Sixth Circuit lifted a stay, OSHA announced that it would begin enforcement efforts on the rule starting Jan. 10.

The emergency temporary standard also sets a Feb. 9 deadline for employers with 100 or more employees to implement a requirement that employees either get vaccinated or test weekly for COVID-19. Certain employees are exempted, namely those that work fully remote, work in an environment where they don’t have contact with any other people, or work exclusively outdoors.

The rule was quickly hit with several legal challenges, and on Friday the Supreme Court held a special hearing to hear oral arguments on it as well as a mandate requiring health care workers at facilities receiving federal funding to be vaccinated. While the court has upheld several state-level mandates on COVID-19 vaccination, the conservative majority appeared to be more skeptical about arguments in favor of the rule. These justices suggested the matter could be better handled by Congress or the states, was overly broad in addressing a larger health issue rather than a workplace-specific one, and lacked clear authority under the law allowing OSHA to establish emergency temporary standards.

The three liberal justices on the Supreme Court suggested that OSHA is more knowledgeable about workplace safety issues than Congress and able to act more quickly to respond to them. They also said the rule is a necessary response to a public health emergency, an argument punctuated by the recent spikes in COVID-19 infections caused by the virus’s Delta and Omicron variants. Economists have also expressed concerns that persistent COVID-19 disruptions could jeopardize the nation’s economic recovery.

While the deliberations raised the possibility of renewing a stay on the rule, the court has so far not opted to take that action. Any stay would likely be brief, as the court is almost certain to deliver a final decision before the test-or-vaccinate deadlines arrives.

OSHA is largely relying on employers to establish and enforce COVID-19 vaccination policies on their own, although the agency says it will investigate companies if it receives complaints from employees about violations. Serious violations of the rule can result in a penalty of up to $13,653, with heavier fines for willful or repeated violations.

Due to the legal uncertainty of the rule, as well as staffing issues at OSHA, early enforcement efforts may not be too aggressive. The agency’s website on the emergency temporary standard has not yet been updated to include information about enforcement, and OSHA is still accepting public comments on the rule through Jan. 19.

The Biden administration has urged companies to establish their own COVID-19 vaccination policies, though many companies have indicated that they expect to create such a policy only if the OSHA rule goes into effect. Businesses have been advised to have a policy ready and to take steps to address other issues related to the COVID-19 pandemic and potential disruptions, including the possibility of adjusting sick leave or remote work policies.

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