Breathing a sigh of relief after Thursday’s Supreme Court stay of a federal COVID-19 vaccine mandate for large employers? Not so fast, legal experts say.
The Department of Labor’s Occupational Health and Safety Administration “will be evaluating all options to ensure workers are protected from this deadly virus,” Labor Secretary Marty Walsh said Thursday after the Supreme Court voted 6-3 to halt OSHA’s vaccination-and-testing emergency temporary standard, or ETS — which required employers with 100 or more workers to ensure that employees are vaccinated or undergo regular testing and wear masks at work — while challenges play out in the 6th Circuit Court of Appeals.
One option could include a new vaccination-and-testing mandate targeting a smaller group of employer types, including senior living and other long-term care providers. But even if a new mandate doesn’t materialize, the Labor Department has indicated that it plans to “vigorously enforce” existing rules, regulations and policies, as well as issue new ones to ensure that employers protect their workers during the pandemic.
More narrow vaccine mandate possible
It appears unlikely that the High Court ultimately would let the current mandate wording stand as-is should it come before justices again, given the majority opinion issued with the stay that OSHA does not have the authority to issue a broad regulation “[r]equiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees.”
But the court majority appeared to leave the door open for a more tailored rule, writing, “Where the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are plainly permissible.”
Mark E. Reagan, the managing shareholder of the law firm Hooper, Lundy & Bookman, thinks it is possible that OSHA will return with a narrower rule.
After all, he told McKnight’s Senior Living, the justices were “more comfortable” with and upheld the “more healthcare-focused” rule from the Centers for Medicare & Medicaid Services, which affects healthcare workers at federally funded facilities such as nursing homes.
“And it’s clear that OSHA sees that all forms of long-term care are high-risk environments, so they may well take another shot at what it is that was viewed as too broad and outside of their authority and make it more targeted,” said Reagan, who is a member of the American Health Care Association’s Legal Committee and is general counsel to the California Association of Health Facilities and the Massachusetts Senior Care Association, state affiliates of AHCA and the National Center for Assisted Living.
Reagan said that Walsh made a “very aggressive statement” Thursday when he said that “[r]egardless of the ultimate outcome of these proceedings, OSHA will do everything in its existing authority to hold businesses accountable for protecting workers, including under the COVID-19 National Emphasis Program and General Duty Clause.”
Given those words, Reagan said, “I think that you could see them doing something that’s more targeted in nature.”
Todd B. Logsdon, a partner with law firm Fisher Phillips in Louisville, KY, told McKnight’s Senior Living that OSHA may not try to mandate vaccination, but the agency might try to “formalize” the guidance in the NEP and the general guidance about mitigating and preventing the spread of COVID-19 that’s on the OSHA webpage.
Regardless, he said, one message for providers for now is, “Pay attention to what’s in the national emphasis program.”
Healthcare ETS: Gone, but if you’re smart, not forgotten
The labor secretary’s message “doubles down” on what OSHA said in late December when it withdrew part of its separate COVID-19 healthcare ETS, Reagan said. And OSHA’s plan to enforce existing rules, regulations and policies is the more pressing matter for senior living operators. Fortunately, he added, OSHA is “clearly signaling” what it believes employers need to do to be compliant: follow the healthcare ETS, even if most of it has been withdrawn.
OSHA adopted the healthcare ETS in June, requiring assisted living communities and other healthcare settings to conduct hazard assessments and have written plans in place to mitigate the spread of the coronavirus. The workplace safety rules also required healthcare employers to provide some employees with N95 respirators and other personal protective equipment. Additionally, the standard included social distancing, employee screening, and cleaning and disinfecting protocols.
The agency withdrew the non-recordkeeping parts of the healthcare ETS in December because it did not think that it could complete a final rule in a timeframe called for by the Occupational Safety and Health Act of 1970. But OSHA said it would “work expeditiously to issue a final standard,” and that it would continue to “vigorously enforce the general duty clause and its general standards.”
The “key sentence” in OSHA’s December statement, however, Reagan said he believes, was that the agency “will accept compliance with the terms of the healthcare ETS as satisfying employers’ related obligations under the general duty clause, respiratory protection, and PPE standards.”
“And then they go on to say, ‘Continued adherence to the terms of the healthcare ETS is the simplest way for employers in healthcare settings to protect their employees’ health and ensure compliance with their OSH Act obligations,’ ” he said.
The wording, Reagan said, is OSHA “clearly signaling” … “ ‘Hey, for you to fulfill your general duty statutory obligations, looking at the healthcare ETS that we are withdrawing for rule-making reasons is something that you should do.’ ”
The NEP and the general duty clause
Logsdon, co-chair of Fisher Phillips’ Workplace Safety and Catastrophe Practice Group and a member of its COVID-19 Taskforce, agrees that the guidance on OSHA’s website, the NEP and the healthcare ETS offer a “good roadmap” for senior living providers.
So what exactly are the NEP and the general duty clause that senior living operators should comply with?
“The national emphasis program says, ‘This is the hazard we’re going to address, these are the workplaces where we think this hazard is the biggest problem, this is how we’re going to select these workplaces for inspections about this hazard, and then this is what we’re going to look at when we’re there,” Logsdon said.
OSHA first issued the NEP in March but revised it in July after it issued the healthcare ETS; the healthcare ETS was incorporated into the revised NEP. Some of the points covered by this NEP, Logsdon said, include access, air exchanges, masking and respirators.
The NEP’s purpose is to “ensure that employees in high-hazard industries are protected from the hazard of contracting SARS-CoV-2,” OSHA said. The agency said that “[p]articular attention for on-site inspections will be given to workplaces with a higher potential for COVID-19 exposures, such as hospitals, assisted living, nursing homes and other healthcare and emergency response providers treating patients with COVID19, as well as workplaces with high numbers of COVID-19-related complaints or known COVID-19 cases.”
The NEP also includes “an added focus to ensure that workers are protected from retaliation” for “employees who complain about unsafe or unhealthful conditions or exercise other rights” under the OSH Act.
The program has an expiration date, but “it’s likely to be extended or renewed,” Logsdon said. And because it’s a policy, not a regulation, “they don’t have to ask Congress, and they don’t have to go through rulemaking to do that. …Not to say that it couldn’t be challenged, but it’s going to get challenged more on a case-by-case basis than on a broad approach like ETS was just challenged on,” he added.
The general duty clause, Logsdon said, “is basically a gap-filler. If there’s not a specific regulation on point, the general duty clause says an employer has a duty to provide a workplace free from recognized hazards that are causing or could cause serious injury or death.”
COVID-19 “clearly” is such a hazard, based on guidance from OSHA and the Centers for Disease Control and Prevention, he said.
“Then, if they were to issue a citation, they have to say there’s a means of reasonable and feasible abatement available,” Logsdon said. “That’s where they will also point back to the guidance that’s on their webpage, recommendations from the CDC and the information in the national emphasis program to say, ‘These are things you could have done.’ ”
State and local rules a factor
Providers must keep up to date on other laws, regulations or policies that may affect them as well, Reagan said.
“If you have a state-based set of requirements, it’s important to, obviously, figure out what’s going on on the national side, to reconcile what is the more stricter requirement that’s going to be applicable and to the extent that there’s any conflicting requirements,” he said. Counties, cities and towns may have their own requirements, Reagan added.
When requirements conflict, he said, “We try to figure out whether we can reconcile them by working with either the county or the state regulators.” Local officials can be a good place to start because they may be more accessible, Reagan added.
No federal restriction prevents operators from implementing their own vaccine mandates for employees — and indeed, many have done so. But in some instances, state law may limit employer action in this regard.
Twenty-one states and Puerto Rico have state OSHA plans — OSHA-approved workplace safety and health programs operated by individual states — that cover private employers and state and local government workplaces, Logsdon said.
“Whether you’re in a state plan state or a federal OSHA state, generally speaking, employers can go ahead and have a vaccine mandate,” he said, “but some states have passed some laws that really put some restrictions on employers’ ability to do that, so you want to know what’s going on in the state where you’re operating it.”
So what is OSHA’s next step?
“I think that they’re probably just going to try to figure out what’s their path forward in the ways that they think that they can do something that passes muster in terms of the Supreme Court’s decision,” Reagan said. “And then the question really becomes, how far do they go, and does it get challenged or not challenged depending on what they do?”
And what should providers’ next step be?
“To the extent OSHA is going to increase enforcement activity, healthcare, including assisted living, is going to be in the crosshairs,” Logsdon said. Senior living providers, therefore, “should prepare as if OSHA could and will show up,” he added. Working to prevent an OSHA citation, Logsdon said, should also prevent other potential liabilities.
For more information
OSHA resources for providers:
Fisher Phillips resources: