Court Decision Paves Way for Forthcoming Vaccination/Testing Requirement

CATEGORY: Special Bulletins
CLIENT TYPE: Public Education, Public Employers, Public Safety
PUBLICATION: LCW Special Bulletin
DATE: Dec 27, 2021

On December 22, 2021, the United States Supreme Court stated that it would hear oral arguments on January 7, 2022[1] concerning the federal Occupational Safety and Health Administration (“OSHA”) regulation[2] that requires that employees at middle and large-sized companies[3] either be fully vaccinated against COVID-19 or submit to weekly testing.[4] Less than one week earlier, the Sixth Circuit Court of Appeals lifted an emergency stay placed on the enforcement of the regulation by the Fifth Circuit Court of Appeals.

After the stay was lifted, federal OSHA indicated that it would commence enforcement of the regulatory requirements starting on January 10, 2022.[5] While OSHA lacks jurisdiction to enforce the regulation in California due to state law preempting federal enforcement of workplace health and safety standards,[6] relief from the vaccination or testing requirements may be short-lived.

In order for California to maintain its preemption authority and federal funding, the state is required to adopt its own safety standards that are “at least as effective” as related federal standards. As a result, if federal OSHA promulgates a regulation that is more prescriptive and protective than the state standard, the California Occupational Safety and Health Standards Board (“OSHSB”) must promulgate a comparably effective health and safety standard in order to maintain preemption authority.

If the Supreme Court upholds the federal regulation, the OSHSB will need to adopt an equally effective  state regulation that requires employers in California to ensure their employees are either fully vaccinated or tested on a weekly basis. The OSHSB may do so at its regularly scheduled January 16 meeting or at a special meeting.

For the time being, all current COVID-19-related workplace health and safety laws in California remain operative and enforceable, and neither the lifting of the stay nor the Supreme Court’s consideration of the challenge to the regulation alters employers’ obligations to comply with present requirements. Even if the Supreme Court denies the application for a stay, the OSHA regulation will not apply to California employers until the OSHSB considers and adopts comparable regulations at the state level.

Liebert Cassidy Whitmore attorneys will be actively monitoring the Supreme Court’s deliberations as well as any subsequent regulatory action by the OSHSB. When the Supreme Court issues its decision on the federal regulation or OSHSB promulgates regulations applicable to employers in California, Liebert Cassidy Whitmore will provide an update on such developments.

[1] National Federation of Independent Businesses v. Dept. of Labor (2021) ___ U.S. ___, order granting consideration of applications for stay. The text of the December 22, 2021 Order is available here: https://www.supremecourt.gov/orders/courtorders/122221zr2_f20h.pdf.

[2] COVID-19 Vaccination and Testing Emergency Temporary Standard, 86 Fed. Reg. 61551 (Nov. 5, 2021) (to be codified at 29 C.F.R. § 1910.501). The public inspection copy of the full regulation is available here: https://public-inspection.federalregister.gov/2021-23643.pdf.

[3] The regulation applies to and covers employers with 100 or more employees, subject to two, limited exemptions for workplaces that are covered by comparable federal requirements. The OSHA regulation does not apply to (1) workplaces covered under the Safer Federal Workforce Task Force COVID19 Workplace Safety: Guidance for Federal Contractors and Subcontractors; or (2) settings where an employee provides healthcare services or healthcare support services when subject to the requirements of 29 C.F.R. § 1910.502. Separately, even where the regulation does apply to a covered employer, it will not apply to employees who (1) do not report to the physical workplace where other individuals are present; (2) work from home; or (3) work exclusively outdoors.

[4] On November 12, 2021, the Fifth Circuit Court of Appeals extended its November 6 temporary emergency stay of the OSHA COVID-19 regulations. The stay remained in effect until the Sixth Circuit’s decision on December 17, 2021.

[5] The state attorneys general and various private entities have applied to the United States Supreme Court for another stay. In response, the Supreme Court announced that it would hear oral arguments regarding the stay on January 7, 2022. If the Supreme Court places another emergency stay on these regulations, then they will not become effective, and the corresponding 30-day timeline that the OSHSB must follow is likewise paused.

[6] California employers are not subject to OSHA jurisdiction because California has adopted an “OSHA-approved state plan” that is “at least as effective” as the federal standard. (See 29 U.S.C. § 667; 29 C.F.R. § 1953.5(b).)

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