OMICRON V. OSHA: THE NEED FOR PERMANENT MEASURES TO HELP EMPLOYERS AND EMPLOYEES MANAGE THE PANDEMIC SAFELY

By: Ayesha Mitha, Volume 106 Staff Member

On January 13, 2022, the United States Supreme Court dealt a blow to the Occupational Safety and Health Administration’s (OSHA’s) Emergency Temporary Standard (ETS) for large employers. The decision put the ETS on hold indefinitely.[1] Among other things, the ETS mandated that all businesses with 100 or more employees require their employees to either vaccinate and provide proof or submit to weekly COVID-19 testing to attend work.[2]

Though the Supreme Court acknowledged that OSHA is tasked with ensuring workplace safety by enforcing reasonably necessary or appropriate occupational safety and health standards, the Supreme Court expressed its concern that the ETS was “no everyday exercise of federal power.”[3] The majority was specifically concerned that this mandate exceeded OSHA’s jurisdiction, writing:

Although COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID-19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather . . . . Permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization.[4]

The Supreme Court further said that the vaccinate-or-test mandate was “strikingly unlike the workplace regulations that OSHA has typically imposed,” and that because it was universally applied to any employer with 100 or more employees, it did not fit within the regulatory authority OSHA possessed, which is only to regulate occupation-specific dangers.[5] The Supreme Court, however, also recognized that targeted regulations would be permissible, and that OSHA could continue to appropriately regulate businesses where COVID-19 poses a specific risk because of the particular aspects of an employee’s job. For example, OSHA could regulate researchers who work with the COVID-19 virus or employees who work in especially cramped workplaces where the virus would spread more quickly.[6]

The rise of the Omicron variant of COVID-19 has led to a three-times increase in worker complaints and referrals to OSHA from other agencies.[7] The surge of COVID-19 infections and the lack of specific rules to prevent infections has led to increased number of calls for OSHA to either boost enforcement or reinstate a similar ETS measure. OSHA had taken in over 700 worker complaints in the first month of 2022 alone.[8] To compare, in November, before the Omicron variant took over in the U.S., OSHA was averaging roughly seventy complaints per week, or 300 complaints per month. The increase in complaints has tracked with the spread of the Omicron variant.[9] Starting in mid-December, the number of complaints increased steadily each week, up to 233 complaints in the last week of December. The increase in complaints is similar to what OSHA experienced in the summer of 2021 when the Delta variant was on the rise across the country.[10] OSHA has also increased COVID-19 related inspections correspondingly. In early-December OSHA was averaging about twenty-three inspections weekly.[11] But beginning in January, the agency opened nearly 100 inspections, fifty of which took place in only one week in January.[12]

Workers’ advocates have called for a renewed need for OSHA or employer based health regulations citing the growing COVID-19 numbers as evidence.[13] Rebecca Reindel, director of safety and health for the AFL-CIO labor federation said to Bloomberg Law that “[e]mployers are not keeping workers safe and the complaint activity you cited shows that workers are calling on the government, on OSHA, to help them . . . . They need their employers to provide mitigation measures, which are key to preventing spread of the virus.”[14]

One possible resolution would be to reinstate new, similar measures to the ETS. While the ETS as previously drafted may be dead, there are still ways that mandatory employee vaccination could persist, either by more targeted programs from OSHA,[15] through local or state policies,[16] or by private employers’ own policies.[17] OSHA is under increasing pressure from an uptick in worker complaints, and experts warn that there will be further variants of COVID-19.[18] OSHA,[19] the Biden Administration, individual states, and/or private employers themselves should begin to look into more permanent measures to help employees and employers manage the next few waves of the pandemic safely. Though it seems almost inevitable that some form of vaccine enforcement will stick, the process should begin now to get those measures into place.

 

[1] Nat’l Fed’n of Indep. Bus. v. Dep’t of Lab., Nos. 21A244 and 21A247, slip op. at 6 (U.S. Jan. 13, 2022).

[2] Benjamin E. Widener, The ETS, the Supreme Court Ruling, and the Vax-or-Test Rollercoaster: What Should Your Business Do Now?, Nat’l L. Rev. (Jan. 22, 2022), https://www.natlawreview.com/article/ets-supreme-court-ruling-and-vax-or-test-rollercoaster-what-should-your-business-do [https://perma.cc/XR4N-LEZ9].

[3] Dep’t of Lab., slip op. at 6.

[4] Id. at 6–7.

[5] Id. at 6

[6] Id. at 7.

[7] Bruce Rolfsen, Covid-19 Complaints to OSHA Surge as Rules Are Stayed, Bloomberg (Jan. 21, 2022), https://news.bloomberglaw.com/safety/covid-19-complaints-to-osha-surge-as-rules-are-stayed-withdrawn [https://perma.cc/68ZD-GHW7].

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Id. Employers having 100 or more employees have been left in an unsettled position. Employers that have already mandated vaccination are unlikely to go back on such mandates. For example, large employers that already had required vaccination, like Citigroup Inc., are alleging that they are going to keep their policies in place. Thomas Gryta & David Benoit, Citigroup Sticks with Its Covid-19 Vaccine Mandate, While GE Drops Its Rules, Wall St. J. (Jan. 15, 2022, 12:03 PM), https://www.wsj.com/articles/citigroup-sticks-with-its-covid-19-vaccine-mandate-while-ge-drops-its-rules-11642258637 [https://perma.cc/6QBF-AVAY]. Additionally, employers may be reluctant to act because OSHA may yet issue narrower, targeted,  and industry-specific rules and regulations such as those targeting COVID-19 researchers. OSHA announced that it would consider all the available options after the Court’s rulings. OSHA, Statement on the Status of the OSHA COVID-19 Vaccination Status and Testing ETS, U.S. Dep’t Lab. (Jan. 25, 2022), https://www.osha.gov/coronavirus/ets2 [https://perma.cc/ZB22-4E5L] (“Although OSHA is withdrawing the vaccination and testing ETS as an enforceable emergency temporary standard, the agency is not withdrawing the ETS as a proposed rule. The agency is prioritizing its resources to focus on finalizing a permanent COVID-19 Healthcare Standard.”) (emphasis added).

[16] Rolfsen, supra note 7. The Supreme Court’s ruling does not apply to state or local mandates already in place, so employers who are acting under state or local mandates are not free to disregard those mandates under the Supreme Court’s ruling. It is still unclear whether the ruling will prompt more state and local governments to implement local vaccination mandates. As an example of a local mandate, New Jersey mandates employee vaccination or weekly testing for healthcare workers, preschool and childcare centers, and schools grade schools must require employee vaccination or weekly testing. Id. However, New Jersey also continues to be the number one state for OSHA worker complaints in the country. New Jersey Is the #1 State with the Most COVID-19 Worker Safety Violations, Stacker (Jan. 31, 2022), https://stacker.com/new-jersey/new-jersey-1-state-most-covid-19-worker-safety-violations [https://perma.cc/8UJN-BMS8].

[17] Private employers are not prevented by the ruling from implementing their own vaccination mandates. Benjamin E. Widener, The ETS, the Supreme Court Ruling, and the Vax-or-Test Rollercoaster: What Should Your Business Do Now?,Nat’l L. Rev. (Jan. 22, 2022), https://www.natlawreview.com/article/ets-supreme-court-ruling-and-vax-or-test-rollercoaster-what-should-your-business-do [https://perma.cc/XR4N-LEZ9].

[18] Holly Ellyatt, ‘The Next Variant is Just Around the Corner’: Experts Warn the World’s at Risk Until All Are Vaccinated, CNBC (Jan. 6, 2022), https://www.cnbc.com/2022/01/06/new-covid-variants-are-a-danger-until-the-whole-world-is-vaccinated.html [https://perma.cc/FZT4-UPXS].

[19] Meghan McCarty Carino, OSHA Moves to Create Permanent Workplace Safety Rules for COVID, Marketplace (Jan 31, 2022), https://www.marketplace.org/2022/01/31/osha-moves-to-create-permanent-workplace-safety-rules-for-covid/ [https://perma.cc/623T-ZZKQ] (signaling that OSHA is moving to create new workplace safety rules, but as commenters have pointed out these rules would take months or even years to get a standard set).