By a hard-hitting 6-3 majority last Thursday, the U.S. Supreme Court barred the U.S. Occupational Safety and Health Administration (OSHA) from implementing or enforcing its new COVID-19 Emergency Temporary Standard (ETS).  The ETS would have required that all employers of 100 or more employees have proof that their employees are either fully vaccinated against COVID-19 or are undergoing weekly COVID-19 testing.  While the OSHA ETS will almost certainly never become effective, employers operating in California have reason to expect such “vax or test” regulations may yet be imposed, particularly on a more targeted basis.

The U.S. Supreme Court Signals It May Uphold Narrower OSHA Regulations.

In determining whether the OSHA ETS are lawful in its view, the Supreme Court majority first emphasized that OSHA]s authority is limited to “ensuring occupational safety” by enforcing standards that are necessary to “provide safe or healthful employment.”  In the majority’s view, “although COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most [workplaces].”  (Emphasis added.)  The majority went on to express its great concern with the fact that the OSHA ETS would apply without regard for the degree of risk for COVID-19 transmission in any particular workplace.  The OSHA ETS “draws no distinctions based on industry or risk of exposure to COVID-19,” the majority wrote.  “Thus, most lifeguards and linemen face the same regulations as do medics and meatpackers,” which the majority found unacceptable.  Within a short nine-page ruling, the majority characterized the OSHA ETS as a “blunt instrument and” an “indiscriminate” measure that far exceeds OSHA’s authority and, ultimately, found the ETS to be a general public health measure that was “simply not part of what the agency was built for.”

Notwithstanding the sound thrashing the majority gave the ETS, however, they also wrote that more targeted regulations from OSHA may be lawful.  “Where the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are plainly permissible,” the majority wrote.  (Emphasis added.)  OSHA could, for example, “regulate risks associated with working in particularly crowded or cramped” workplaces.  The Court did not give any more direction as to workplaces OSHA could regulate with respect to COVID-19 protocols.

However, the conservative majority clearly left open a doorway for OSHA to impose COVID-19-related regulations on at least some workplaces that pose a “special danger” of COVID-19 transmission to employees.

The U.S. Department of Labor Promises Further Action by OSHA.

On receiving word of the Supreme Court’s ruling, U.S. Secretary of Labor Marty Walsh threw down the gauntlet.  Last Thursday, the day the Supreme Court released its ruling, Secretary Walsh released a statement stridently insisting that the OSHA ETS were issued “under clear authority from Congress . . .”

Perhaps more importantly, the Secretary’s statement also made known that “OSHA will be evaluating all options to ensure workers are protected from the deadly virus” and “will do everything in its’ existing authority to hold businesses accountable” for protecting workers from COVID-19 transmission.

Secretary Walsh’s statement makes clear that OSHA will not be discouraged by the Supreme Court’s ruling and will, instead, lean into exercising whatever the Department of Labor considers to be OSHA’s existing authority to impose COVID-19-related protocols on employers.  Secretary Walsh’s resolve – deliberately expressed in a most public manner — gives us every reason to believe that OSHA will return to the table with additional regulations or ETS imposing obligations on employers to curb COVID-19 transmission in the workplace and that he considers it a priority to do so.

A Caveat: OSHA Does Not Take Enforcement Action in California.

California and 21 other states have agreements in place with OSHA by which they will adopt and enforce their own state standards that are at least as effective as any OSHA regulation or ETS on any particular subject.  In exchange for that agreement, OSHA does not exercise enforcement action on employer operations in California, other than in remote circumstances, instead leaving to Cal/OSHA, for example, the enforcement of California state regulations.  (OSHA exercises direct enforcement of its regulations in the remaining 28 states.)

Nevertheless, employers operating in California would be mistaken to believe they are safely out of reach of further “vax or test” or other regulatory efforts by OSHA or authorities within California.

What May Be Coming.

Notwithstanding the U.S. Supreme Court’s ruling, employers operating in California may yet be subject to efforts  to mandate that employees be vaccinated or tested, or other new requirements.

• More Action from OSHA: Obviously, OSHA is likely to evaluate potential new regulatory approaches that may minimize COVID-19 transmission in workplaces in a more targeted manner in the hopes they withstand review by Courts of Appeal and the current U.S. Supreme Court. OSHA may attempt, for example, to formulate factors for use in objectively identifying workplaces or jobs that are at greatest risk of COVID-19 transmission.  Such an approach may involve preparing metrics for workplace density, employees’ contact indoors with co-workers or the public, workplace ventilation, the physical demands of certain jobs as they relate to the intensity of breathing, etc.  As another approach, OSHA impose new regulations on the non-healthcare industries it has already identified as exposing employees to the greatest risk of COVID-19 infection, including supermarkets, discount department stores, general warehousing and storage, full- and limited-service restaurants, meat processing and animal slaughtering.

In the event OSHA issues any such new regulations, California would be required to adopt new conforming state-law provisions, typically within 30 days of the effective date of the new OSHA requirements.

• Action by Cal/OSHA: Another credible possibility is that, even absent further regulatory efforts by OSHA, Cal/OSHA or another California state authority imposes vaccination or testing requirements, most likely targeting high-risk workplaces and positions. So far, California has required that only state employees, healthcare workers and K-12 teachers be vaccinated.

• Action by Localities: Finally, cities and counties in California may move forward individually in imposing vaccination, testing or other requirements on private sector employers. If such action is taken, it is most likely to be implemented by cities and counties in the general areas of San Francisco and Los Angeles and on an industry or other targeted approach.  The fact that this is a real possibility is illustrated by the fact that New York City last month implemented a mandate that all private sector employees be vaccinated, with narrow exceptions.

In short, while last week’s Supreme Court ruling most likely sounded the death knell for OSHA’s ETS, it has not put an end to any number of other regulatory efforts by OSHA with which California would have to conform or to California authorities imposing “vax or test” or other requirements on private sector employers.

The demands the pandemic is imposing on employers operating in California will continue to evolve.

Closing

The existing Cal/OSHA ETS mandating certain COVID-19 protocols for California employers are not impacted by last week’s ruling and remain in effect.  Our recent posts on the Cal/OSHA ETS, including those found here and here remain accurate.

Our California labor and employment law practice group stands ready to assist and continues to closely monitor developments on the federal, state and local levels on this subject.

If we may help you in complying with any current COVID-19-related regulations or addressing other California employment law challenges, please contact the author or your Fox Rothschild LLP counsel.

This post provides general information and does not constitute legal advice to any person with respect to any circumstance. This post does not create an attorney-client relationship with any person.   

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