Update: OSHA/COVID Vaccine Court Rulings and What that Means for Your Company

UPDATE jan. 10, 2022

What happened? 
Iowa OSHA announced that it will not be enforcing or adopting the federal OSHA ETS (test or vaccine rules for employers with 100+ employees). https://www.desmoinesregister.com/story/news/politics/2022/01/07/covid-iowa-employers-employees-dont-need-comply-federal-vaccine-mandate/9139061002/

So now what? 
The federal OSHA ETS is still in effect as there is no ruling from the US Supreme Court. I recommend that you continue to make efforts that show good faith compliance with the federal OSHA ETS, and adjust once a ruling from the United States Supreme Court is issued.

Based on the oral arguments on Friday, I believe it is likely the large employer OSHA ETS will be overturned by the United States Supreme Court, but I could be wrong. At this point, showing an effort toward good faith compliance is the best route to go until we get a final ruling from the United States Supreme Court.

A little background:
By way of background and for context to the announcement by the state of Iowa on Friday that it is not enforcing the federal OSHA ETS, Iowa has its own IOSHA plan approved by the federal government. Iowa has 15-30 days to either adopt the ETS or adopt its own standard that is ‘at least as effective.’ Because Iowa has its own state approved plan, it can:

1. Adopt the ETS (Iowa has now stated it will not);
2. Adopt standards even stricter than the ETS, such as including all employers at some level below the 100-employee minimum threshold (Iowa will not);
3. Refuse to adopt the ETS, which is a dangerous move in that it risks OSHA revoking approval of an entire State Plan (which will deter most OSHA-state-plan states from opting for outright refusal; Iowa has indicated this is the path it is taking); or
4. Challenge the ETS in court. Section 7(f) of the OSH Act allows any person “adversely affected” by a standard to file a petition challenging that standard in federal appeals court within 60 days (including a request for injunctive relief blocking the ETS from taking effect) (Iowa has done this and it was consolidated with the cases that were argued on Friday).

Iowa has asserted that it has adopted its own standard that is at least as effective. If the United States Supreme Court affirms the OSHA ETS, then there is an issue to be sorted out by the federal government and the state of Iowa (with Iowa being in the position of defying a federal court order or possibly having its OSHA approved state plan revoked). My opinion is that if the U.S. Supreme Court upholds the federal OSHA ETS, the state of Iowa’s decision not to implement will not stand. 

Take away:  
If the OSHA ETS applies to your company, you should continue to make good faith efforts at compliance until we receive a ruling from the US Supreme Court. At this point, that means determining who is vaccinated or not, getting policies in place, and you can require those who are not vaccinated and are working at your worksite to mask.  

Please contact an employment law attorney with any questions and we will continue to update you. 

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published jan. 10, 2022

Over the weekend, the U.S. District Court for the Sixth Circuit ended the stay of the OSHA Emergency Temporary Standard on COVID vaccine mandates (“OSHA ETS”).  As the 6th Circuit was designated as the circuit court to hear this issue, the 6th Circuit decision lifting the stay is a nationwide order and impacts all employers covered by the OSHA ETS. Immediately following this ruling, the first of several emergency appeal applications was made to the U.S. Supreme Court.   

OSHA announced it will extend the deadlines to put a vaccine policy compliant with the OSHA ETS into place until January 10, 2022 and extend the testing requirements until February 9, 2022.  (https://www.osha.gov/coronavirus/ets2#litigation)

What Does this Mean for Your Company? 

First – the Legal Landscape:  Just because a case is appealed to the U.S. Supreme Court does not mean the U.S. Supreme will take the case.  However, there are a few compelling reasons why we believe the Court will take this case: to resolve the circuit split (the conflict) between the 5th Circuit and 6th Circuit Courts of Appeal; to address whether OSHA is allowed to issue these regulations as an “emergency” standard, rather than under its normal rule making protocols; and as the Court will take cases to address matters of great public significance.  

How long will the appeal take?  If the U.S. Supreme Court takes the appeal, it seems likely that the case will not be decided prior to the new January 10 and February 9, 2022 deadlines.  

Compliance with the OSHA ETS:  We are recommending that if your company is covered by the OSHA ETS, meaning, generally, that your company has more than 100 employees, you should work toward compliance with the OSHA ETS.   

General Steps To Take (unless and until the U.S. Supreme Court intervenes): 

1. Determine which employees are vaccinated or not. 
2. Review the two OSHA form policies and determine which policy best suits your company.  Set-up a mechanism for review of religious or medical exemptions. 
3. Create a system to collect vaccination status of your employees.  The type of record that you may be required to keep and/or review is dependent on timing.
4. Create your roster. 
5. Review logistics on testing: how will you collect tests; when will you collect tests and consider how you will handle absenteeism because of an employee missing a test. 

Please contact an employment law attorney with any questions and we will continue to update you. 

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Simmons Perrine Moyer Bergman PLC is a full service law firm with locations in Cedar Rapids and Coralville, Iowa. For more information, visit spmblaw.com.  

Disclaimer: This information is intended for general information purposes only and is not intended, nor should it be construed or relied on, as legal advice. Please consult your attorney if specific legal information is desired.