Shot-or-Test Time Arrives With OSHA Resolute, Employers in Limbo

Absent a Supreme Court directive to the contrary, Monday marked the first day the federal Occupational Safety and Health Administration could begin citing employers for violating the agency’s Covid-19 shot-or-test emergency temporary standard.

The justices heard more than two hours of argument Friday from attorneys representing numerous states and businesses asking the high court to halt enforcement while the mandate is contested in a lower court. However, as of Monday afternoon, the Supreme Court had not issued an order halting—or green lighting—OSHA enforcement.

“The rule is currently in effect nationwide,” an agency spokesperson said Monday in written statement to Bloomberg Law. “OSHA will continue moving forward with implementing this standard as part of the agency’s mission to make sure every working person in the country has safe and healthy working conditions.”

The standard requires most U.S. employers with 100 or more workers to either require all of them to be fully vaccinated or order unvaccinated workers to pass a Covid-19 test at least weekly. While the tested-or-vaccinated mandate won’t be enforced until Feb. 9, employers as of Monday had to determine their workers’ vaccination status and make sure those who remain unvaccinated wear masks while indoors.

Those efforts could be halted at a moment’s notice by the Supreme Court, or not.

“This kind of limbo isn’t good for any business,” said Karen Harned, executive director of the National Federation for Independent Business Small Business Legal Center in Washington.

Employers believe if they start following the standard’s mandate to ask workers about their vaccination status, employees will see that as a step toward requiring vaccinations or weekly testing and will look for jobs elsewhere, Harned said.

Comply Now

Among the specific mandates OSHA has advised employers it will enforce starting Monday are establishing a vaccination policy, educating workers about the standard, determining who is vaccinated and obtaining proof of the vaccination, ensuring workers who aren’t fully vaccinated wear a mask indoors or while sharing a work vehicle, and not allowing workers who test positive to stay at work.

Without a Supreme Court stay, employers under federal OSHA jurisdiction who aren’t yet in compliance with the standard at least need to be able to prove to inspectors they are trying.

“OSHA has stated that it will exercise its executive prosecutorial discretion to refrain from citing an employer for a violation of the ETS if the employer can show that it is working in good faith for the implementation of compliance with those requirements,” said Daniel Kaplan, a partner with Foley & Lardner L.L.P. in Madison, Wis., and co-chair of the firm’s Labor & Employment Practice.

Justice Department Solicitor General Elizabeth Prelogar at Friday’s Supreme Court hearing said that “employers need to be adopting their policies, they need to be ascertaining the vaccination status of their employees, and as of Jan. 10, they need to be requiring masking for any employees who remain unvaccinated.”

The mandate to exclude from workplaces employees who aren’t fully vaccinated or haven’t passed a weekly Covid-19 will “kick in” Feb. 9, Prelogar added.

Federal OSHA allows the governments of 26 states—including California—Puerto Rico, and the U.S. Virgin Islands to adopt and enforce their own workplace safety and health rules for private-industry or state and local government workers, provided their safety measures are at least as good as those prescribed by the federal agency. Those governments have until Jan. 24 to adopt a standard and until late February to begin enforcement.