The Supreme Court started to hear oral arguments last week on the challenges to the Emergency Temporary Standard (ETS) that requires employers with 100 or more employees to take steps to combat the spread COVID-19, including mandating that all employees either be vaccinated or submit to weekly testing. The ETS was issued in early November by the Occupational Safety and Health Administration (OSHA). According to the Tire Industry Asssociation (TIA) in its weekly newsletter, it is not yet clear when the Supreme Court will issue a ruling.
At the time of its release of the ETS was met with flood of lawsuits challenging OSHA’s actions.
TIA said the course of these cases over the last two months has left many businesses understandably confused about where things stand and what they should be doing, given that OSHA is prepared to begin enforcing the first phase of the ETS on January 10. They must provide employee up to four hours of paid leave to receoved each dose of the COVID-19 vaccine and reasonable paid time off to recover from any side effects. Additionally, covered employers must implement and communicate written COVID safety protocols that include provisions like requiring employers to provide notice if they are diagnosed with or test positive for COVID-19 and requiring unvaccinated employees to wear face coverings when they are indoors or sharing a vehicle for work.
With the timing of the Supreme Court oral arguments and the OSHA enforcement date, TIA said there are three potential outcomes:he Supreme Court issues a decision on or before January 10 upholding the ETS and the OSHA proceeds with enforcement of the ETS.
The Supreme Court issues a decision on or before January 10 striking down the ETS or staying the ETS pending a decision.
- The Supreme Court doesn’t decide the case or stay the ETS by Jan. 10 and OSHA proceeds with enforcement of the ETS.
- Businesses with 100 or more employees need to be prepared that, unless the Supreme Court rules otherwise, the provisions of the ETS will go into effect on Jan. 10 and OSHA will begin issuing penalties for non-compliance on those dates.
- The ETS also has a wide range of other requirements that are set to go into effect on January 10. Items such as developing and issuing compliant policies and determining all employees’ vaccination statuses will take time and planning. Covered businesses that elect to wait to see what happens with the Supreme Court before taking steps towards compliance may find themselves in a scramble or unable to get themselves into full compliance if enforcement begins on January 10 as OSHA has planned.
TIA says the legal issues that the Supreme Court will be considering in this case are nuanced and deal with questions of administrative law and rulemaking authority. The organization recommends that rather than waiting for the Supreme Court’s decision, businesses may want to begin to take steps now to prepare so that they can be in full compliance with the ETS..