On January 13, three days after the measure was due to partially go into effect, the Supreme Court put yet another roadblock in the Biden Administration’s path to mandating Covid-19 vaccinations or routine testing for unvaccinated employees of large private companies. The Court stayed the Emergency Temporary Standard (ETS), kicking the measure back down to the Sixth Circuit, and pushing out compliance deadlines for companies indefinitely.
The decision came as Covid cases and hospitalization rates have skyrocketed nationally, though recent data indicates that the latest wave may have crested. Still, Covid outbreaks in the workplace continue to cause disruptions at businesses ranging from meatpacking plants to SpaceX.
Yet, without a federal requirement, some employers are reluctant to implement vaccination mandates of their own accord. A recent survey from Willis Towers Watson found almost one-third of employers would only mandate employee vaccinations if required by law (25% of employers will do so regardless).
“Although the ETS is currently on life support in the federal courts, that does not end employers’ obligations to ensure that they provide a safe workplace for employees,” employment attorney Mark Kluger of Kluger Healey told HR Brew. “OSHA still has its ‘general duties’ clause, which requires employers to protect employees from known hazards. There is no denying that Covid is a known hazard. So for employers, having a vaccine or testing and masking policy is still the best practice and likely to become the ‘standard’ by which OSHA will assess employers even without the ETS. The other thing to keep an eye on is that states can pick up the slack for the ETS.”
Kara Govro, senior legal analyst at HR compliance firm Mineral, agreed, saying that employers who are “doing nothing” in the face of Covid are “being neglectful.”
There are 1,850 federal and state OSHA inspectors tasked with covering 8 million work sites, so Govro noted that the agency “doesn’t have the manpower” to hunt down all violations—but employees or their family members who contract the virus at work could bring a worker’s compensation suit against their employer for gross negligence.
Some employees and their families have already taken steps to sue companies for damages. In one current case, the plaintiff alleges a Maryland grocery store is partly responsible for an employee’s death related to Covid. In another, a wrongful death lawsuit against See’s Candies alleges “violating workplace safety” resulted in the death of a family member, in a “take-home” Covid case.
Ogletree Deakins attorney Jim Paul said these cases are likely to be the exception rather than the rule due to their difficulty to prove. “It’s going to be hard to find evidence or expert opinions to ‘prove’ that someone got Covid at work—even with superspreader incidents—because the employee claiming they contracted [Covid] at work might have been the one to bring it into work in the first place,” Paul said in an email.
Bottom line: Labor and employment attorney Jackie Gessner, from Barnes & Thornburg LLP, told HR Brew that the right safety measures will “vary from workplace to workplace” but will likely combine “masking, physical barriers, social distancing, vaccine incentives, and, potentially testing.”—SV