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States Slow Walk Shot-or-Test Rules While Waiting on Supremes

Jan. 11, 2022, 11:00 AM

State-run workplace safety agencies aren’t rushing to enforce OSHA’s vaccine-or-testing mandate for large employers, or even something like it, as they wait to see what the Supreme Court will do with litigation challenging the federal measure.

In more than half of U.S. states, part or all of the enforcement of federal workplace safety falls to state agencies, including several of the states whose attorneys general are suing to block the OSHA rule—adding another layer of uncertainty to the federal Covid-19 standard beyond the impact of the looming court decision.

Once states do adopt a comparable rule, employers will have another 30 days to comply, meaning the enforcement timeline is delayed several weeks in places with state-run programs, adding to the air of uncertainty for businesses and for those who work for them.

The high court on Friday heard argument for a stay of the Occupational Safety and Health Administration rule until the U.S. Court of Appeals for the Sixth Circuit rules on the merits of challenges to the measure brought by businesses and Republican attorneys general. Although the first phase of company compliance with the measure—assessment of employee vaccination status—was set to start Monday, the justices have yet to rule.

At least one state, Iowa, has said definitively it will not implement an OSHA-style shot-or-test mandate regardless of the high court’s decision, with the state’s governor and labor commissioner contending Iowa’s safety protocols are sufficient.

“Iowa doesn’t have a standard requiring the Covid-19 vaccine or testing,” said Labor Commissioner Rod Roberts in a written announcement. “But after closely reviewing the federal OSHA Vaccine Mandate, Iowa has determined it will not adopt the federal standard. Iowa has concluded that it is not necessary because Iowa’s existing standards are at least as effective as the federal standard change.”

Wait and See for Some

Other states, such as North and South Carolina, say they are waiting to see the outcome of the Supreme Court case.

The federal standard “is the subject of a lawsuit pending before the US Supreme Court for which oral arguments were heard on 1/7/2022 and the State of South Carolina is a party,” according to the South Carolina occupational safety agency’s notice to OSHA.

North Carolina’s state labor department sent a similar notice, telling OSHA it is waiting to see the outcome of litigation, according to an email provided by state agency spokeswoman Jennifer Haigwood.

Illinois and Minnesota, meanwhile, have announced they will implement and enforce the federal rule, although the Illinois OSHA program applies only to public-sector employers. Like Illinois, New York’s labor department has safety authority over public-sector employers only and has told OSHA it plans to implement the federal standard, a spokesperson said by email.

Michigan, Nevada, and Oregon indicate on state agency websites that they are preparing to implement the federal standard, while also monitoring the outcome of the litigation.

Many other state-run programs haven’t publicly declared their plans or provided specifics on their enforcement timelines, if any, including Arizona and California, both of which didn’t immediately respond to requests for comment.

Deadlines Bump Against Litigation

While the unresolved status of the shot-or-test mandate litigation has overshadowed the scheduled start of enforcement in states where the federal OSHA rules dictate workplace safety, those 26 states with their own agencies are in their own kind of limbo.

State programs were required to inform OSHA by Jan. 7 of their plans for implementing the shot-or-testing mandate. Those states are required to adopt a rule that is at least as effective as the federal standard by Jan. 24. The list includes 21 states with broad workplace safety authority, five more states with authority only covering public-sector employers, plus Puerto Rico and the Virgin Islands.

Of those states with their own OSHA-like enforcement authority, nine of them—Alaska, Arizona, Indiana, Iowa, Kentucky, South Carolina, Tennessee, Utah, and Wyoming—are among those suing to block the federal agency’s standard and asking the Supreme Court to prevent it from taking effect.

For private employers with 100 or more employees in the remaining states—those answerable directly to the U.S. regulator—an initial enforcement date for the federal agency’s latest Covid-19 emergency temporary standard has already arrived.

At Least As Effective

As with the Carolinas, Virginia’s labor department has notified employers via its website that it is monitoring the litigation over the federal standard and will consider adopting it at a state safety board meeting later in January or early February. The state’s approach to Covid-19 safety rules could change under the incoming Gov.-elect Glenn Youngkin (R), who has expressed opposition to government-imposed vaccine mandates and is set to take office Jan. 15.

State-run programs are required to implement and enforce safety standards that are at least as effective as the federal OSHA standards, or else they risk sanctions up to the possibility of the federal agency removing their authority and taking over enforcement in the state.

OSHA sent warning letters to three states—Arizona, South Carolina, and Utah—in October alleging they failed to promptly adopt the federal agency’s previous Covid-19 emergency standard regulating health-care employers. South Carolina and Utah subsequently implemented the standard. OSHA has yet to issue a formal notice against Arizona to begin decertification, but any move to do so may be moot after OSHA on Dec. 27 said it was withdrawing the federal health-care standard.

—With assistance from Bruce Rolfsen in Washington

To contact the reporter on this story: Chris Marr in Atlanta at cmarr@bloomberglaw.com

To contact the editors responsible for this story: Andrew Harris at aharris@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com

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