Robert J. O’Hara, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s New York office, was quoted in Law360, in “5 Questions After High Court Smacks Down Vax-or-Test Rule,” by Vin Gurrieri. (Read the full version – subscription required.)

Following is an excerpt:

The U.S. Supreme Court effectively killed the Occupational Safety and Health Administration's COVID-19 vaccine-or-testing rule, muddying the waters for how the agency and employers should respond to a pandemic that's entering its third year.

In one of two related opinions Thursday, the high court majority blocked enforcement of the controversial emergency temporary standard issued by OSHA in November that required businesses with at least 100 workers to mandate weekly testing and masking for workers or opt for a vaccination requirement. 

The ETS, the justices said, was effectively a public health measure that went beyond OSHA's authority to regulate occupational hazards. …

What Can OSHA Do If the ETS Is Dead for Good?

While the Supreme Court's decision delved deeply into OSHA's authority to issue the ETS and the scope of the rule, the decision was ostensibly limited to whether the ETS should remain in effect while legal challenges to it play out. …

Another arrow in the agency's quiver is its so-called National Emphasis Program for COVID-19 — an enforcement protocol that focuses the agency's enforcement resources on specific workplace hazards or especially risky industries companies and industries where the largest number of workers face serious virus-related risks or face retaliation for complaining about unsafe conditions. The agency implemented the program last year.

Robert O'Hara of Epstein Becker Green, who represents employers, noted that Walsh's statement effectively seeks to push employers to voluntarily do what the ETS would have required them to do.

The National Emphasis Program, O'Hara said, essentially reverts OSHA to where it was in the early days of the pandemic when the agency's focus was on industries like meatpacking and health care where the risk of COVID-19 was greatest. And while the general duty clause was on the table earlier in the pandemic, O'Hara said it wasn't necessarily a tool the agency used often or to great effect at the time. 

"So I don't know how far they go with the theory that the general duty clause is going to get them where they think companies should be," O'Hara said. "I think it's ... an interesting ploy, but it is basically what they have to work with right now."

What Will Happen to OSHA Rules Already on the Horizon?

Aside from the enforcement tools already at its disposal, OSHA also may choose to embark on fresh rounds of rulemaking following the high court's ruling. And the agency has a few options for doing so, attorneys say. …

Moreover, OSHA included in its most recent regulatory agenda a notice that is planning to propose regulations in spring 2022 for a rule governing infectious diseases in the workplace. …

That sort of regulatory approach, however, takes a long time — years — to develop and promulgate, according to O'Hara, which he says is a reason why OSHA hasn't to date created an airborne pathogen standard.

"If they get down that path, I think it's going to take time, so there's nothing really we can do from an employer perspective right now on those two issues," O'Hara said.

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