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2 courts, 2 sets of COVID-19 emergency workplace rules, 2 different outcomes. What it means

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U.S. Supreme Court blocked the U.S. Occupational Safety and Health Administration from enforcing COVID-19 emergency temporary standards while the California Court of Appeal rejected a challenge to the Occupational Safety and Health Standards Board’s very different emergency temporary standards that lacked any kind of vaccine mandate.
(The San Diego Union-Tribune )
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On Thursday, a 6-3 majority of the U.S. Supreme Court blocked the U.S. Occupational Safety and Health Administration (OSHA) from enforcing COVID-19 emergency temporary standards. Under those standards, employers with 100 or more employees would have had to mandate that their employees be vaccinated against COVID-19, though with the option of allowing unvaccinated employees to mask at work and test weekly for the disease. Narrow exceptions were made for employees who work remotely or outdoors 100 percent of the time. Non-compliant employers faced big fines.

The day before the Supreme Court issued its ruling, the California Court of Appeal published a ruling rejecting a challenge to an early version of the California Occupational Safety and Health Standards Board’s (OSHSB) own evolving COVID-19 emergency temporary standards, which have never included a form of general vaccine mandate.

Here’s what it all means to California employers.

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Supreme Court blocks OSHA emergency standards

When Congress created OSHA in 1970, it charged the agency with ensuring “safe and healthful working conditions.”

OSHA may issue emergency temporary standards, skipping otherwise required notice and public input, only if the Secretary of Labor shows: (1) “that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards,” and (2) that the “emergency standard is necessary to protect the employees from such danger.” Only one of the six emergency rules OSHA had previously issued that had been challenged in court had been fully upheld. Now the record is one of seven.

The court majority saw OSHA’s vaccine or mask-and-test mandate operating “as a blunt instrument. It draws no distinctions based on industry or risk of exposure to COVID-19. Thus, most lifeguards and linemen face the same regulations as do medics and meatpackers,” covering about 84.2 million employees.

The court rejected the Biden administration’s argument that COVID-19 constitutes a work-related danger within OSHA’s regulatory purview. “Although COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID-19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases.”

The Supreme Court acknowledged that OSHA could regulate “occupation-specific risks related to COVID-19. Where the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are plainly permissible.” But, said the court, OSHA’s “indiscriminate approach fails to account for this crucial distinction — between occupational risk and risk more generally — and accordingly the mandate takes on the character of a general public health measure, rather than an ‘occupational safety or health standard.’”

California Court of Appeal upholds California OSHSB COVID-19 emergency workplace rules

The California Court of Appeal, on the other hand, just published an opinion rejecting the Western Growers Association’s challenge to OSHSB’s very different emergency temporary standards that lacked any kind of vaccine mandate. The court rejected the argument that OSHSB had exceeded its statutory authority by requiring employers to exclude any worker with COVID-19 exposure from the workplace and by requiring that employers continue a worker’s pay, benefits, and seniority while the worker is excluded due to workplace-related exposure to COVID-19. “[A] rational connection exists between an employee’s exposure and the fact that the employee may have contracted COVID-19, thus necessitating his or her exclusion from the workplace.”

The court continued: “[M]andating pay, benefits and seniority during periods of exclusion furthers the goals of encouraging employees to report positive COVID-19 cases and COVID-19 exposures, thus allowing employers to minimize possible additional exposures to other workers. These goals all fall within the Board’s authority to assure ‘safe and healthful working conditions.’”

Bottom line

Had OSHA’s large employer vaccine mandate stood, OSHSB was set to adopt revised regulations “at least as effective” as those of its federal counterpart at OSHSB’s Jan. 20 meeting. As it stands, all California employers are subject to OSHSB’s current COVID-19 emergency temporary standards, updated effective Jan. 14. Private California employers of any size may, but are not required to, mandate employee vaccination.

My next column will reconcile the U.S. Supreme Court blocking OSHA’s vaccine mandate with a Los Angeles federal judge, a week earlier, upholding L.A.’s vaccine mandate for city employees.

Dan Eaton is a partner with the San Diego law firm of Seltzer Caplan McMahon Vitek where his practice focuses on defending and advising employers. He also is an instructor at the San Diego State University Fowler College of Business where he teaches classes in business ethics and employment law. He may be reached at eaton@scmv.com. His Twitter handle is @DanEatonlaw