On Jan. 13, the U.S. Supreme Court (SCOTUS) blocked an Emergency Temporary Stay (ETS) authorizing OSHA to require employees of large private sector companies (100+ employees) to be vaccinated for COVID-19 or undergo weekly testing. The court ruled that OSHA does not have the power to impose such a sweeping mandate under the current circumstances.
Mixed emotions
The ruling brought mixed emotions for employers and employees. On one hand, it relieved companies from the enormous burden that creating, implementing, and administering a vaccine-or-weekly-test policy would place on them and their HR professionals. On the other hand, businesses operating in multiple states may have to continue to adhere to each state’s unique COVID rules instead of adopting a uniform national standard. We are already seeing state-specific administrative and legislative efforts like the ETS, and we expect that trend to continue.
Employer rights
The ruling does not prevent private-sector employers from establishing and implementing a vaccine mandate or vaccine-or-testing policy that mirrors the ETS for their workplace. While South Carolina is extremely unlikely to consider its own mandate, the state, under the leadership of Gov. McMaster, has thus far respected the rights of business owners to make their own decisions on COVID vaccinations and testing for employees as it pertains to the needs of their successful operations.
Exercise due care
Although companies may choose whether to require vaccines, testing or masks (so long as they follow applicable laws and legal accommodations), the SCOTUS ruling does not excuse employers from exercising due care. OSHA requires employers establish a safe and healthy worksite free from unreasonable hazards. For this reason, companies should continue to follow CDC recommendations, compliance with which OSHA will likely view as satisfying the general duty clause described above. HR professionals should document steps taken to comply with health and safety regulations, to prevent any outbreaks, and to reasonably respond to on-site infections and prevent further outbreaks. These steps will not only blunt any potential investigation or liability, but also show care for workers and prevent disruption of operations.
Exercise empathy
This Supreme Court decision reveals the difficult and impossible challenges human resource professionals have trying to manage the workplace during a pandemic. While potentially relieved of the onerous burdens of the ETS, HR professionals must make the best of ongoing uncertainties, increased polarization, and continually respond to unexpected developments or changed circumstances. Now entering the pandemic’s third year, this overtaxed team deserves empathy for piloting the workforce during such unprecedented times.
