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.”