OSHA Vaccine Mandate Struck Down by Supreme Court – What This Means for California Employers

The OSHA Vaccine Mandate

The Secretary of Labor enacted a vaccine mandate covering almost all employers with at least 100 employees.  It requires workers to receive a COVID-19 vaccine and preempts state laws with differ.  The only exception is for those workers who obtain a medical test each week at their expense and on their own time and wear a mask at work.  Employees who do not comply must be removed from the workplace and employers can face fines from $13,653 to $136,532.

Limitations on OSHA Standards

OSHA’s Scope is Limited to the Workplace.  OSHA is tasked with ensuring occupational safety.  Standards enacted must be reasonably necessary or appropriate to provide safe or healthful employment.  Even the Solicitor General admitted that OSHA is limited to regulating dangers in the workplace.

Emergency Standards Can Be Enacted in Limited Circumstances.  Most standards enacted by OSHA or other agencies must follow a rigorous process that includes a notice and comment period.

There is, however, an exception for emergency temporary standards.  The process is not applicable and can take effect immediately if employees are exposed to grave danger and the emergency standard is necessary to protect employees from the danger.  The OSHA COVID-19 vaccine mandate took effect as an emergency temporary standard.  It also failed to make any distinctions based on industry or risk of exposure to COVID-19.

The Court Rejects the Vaccine Mandate

The Supreme Court concluded that the Occupational Health and Safety Act does not authorize this vaccine mandate.  While COVID-19 may be a risk in many workplaces, COVID-19 is not an occupational hazard in most workplaces.  COVID-19 spreads at home, school and public gatherings.  As such the risk of COVID-19 is no different from the day-to-day dangers that face everyone in daily life.  The fact that COVID-19, like the hazards of daily life, poses risks to persons at work does not authorize OSHA exercise regulatory authority without clear congressional approval.

OSHA may, however, regulate occupation-specific risks related to COVID-19.  OSHA can regulate where the virus poses a special danger because of particular features of a certain job or workplace.  Examples of job duties or workplaces where regulation might be appropriate include researchers who work with the virus and crowded or cramped work environments.  But an indiscriminate approach takes on the character of a general public health measure rather than an occupational standard.  Compelling 84 million Americans to vaccinate simply because they work for employers with more than 100 employees is not an occupational standard.

Effect on California Employers

The obvious affect of the Court’s ruling is that employers with 100 or more employees are not compelled, by federal law imposed by OSHA, are not required to vaccinate their employees.  However, the Court’s ruling does not directly affect the orders issued by the California Department of Public Health or local Departments of Public Health.  Nor does the ruling affect Cal/OSHA’s regulatory powers, which includes a new emergency temporary standard that takes effect on January 15, 2022.

Do You Need More Information?

Do you need help with managing the ever-evolving COVID-19 laws?  Join us for a zoom conference on Thursday, January 27^th at 9 am to discuss the Supreme Court’s ruling, and the many state orders and mandates affecting California workplaces.  Register at [email protected].