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Taking the Health out of OSHA?

By a 6-3 vote, the U.S. Supreme Court decided that the Occupational Safety and Health Agency’s (OSHA) Emergency Testing Standard (ETS) [vaccine mandate] was an overreach of the Agency’s authority and halted the requirement that companies with more than 100 employees had to require their employees to be vaccinated. The Court decided that the ETS program was more like a public health measure that can only be enacted by Congress or the states. However, one issue left open by the Court is whether OSHA has the ability to issue vaccine mandates in situations where employees are in “special danger” of contracting COVID such as testing labs or in work locations where employees work close together and cannot observe the six-foot social distancing zone.

While employers must comply with individual state and local laws, they are now left to decide if they want to impose a vaccination or routine testing requirement for their workforces. COVID’s latest variant, Omicron, is still causing worker absences due to infection or quarantine measures, with the result being productivity losses for employers. The Center for Disease Control (CDC) bases its guidance for quarantine on an individual’s vaccination status so some organizations may decide to require employees to produce vaccination evidence to determine when the employee may return to work after exposure or having a positive COVID test.

While we are all more than ready to get back to some sort of “normal” in our professional and personal lives, it is difficult for employers to determine the best course of action to maintain safety in the workforce while ensuring workers are well and available to work. The evolving federal, state, and local laws further complicate the issue and may necessitate consultation with counsel. The attorneys at Leonard Sciolla are ready to help you navigate these unprecedented issues. Contact us today at (215) 567-1530.

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