I’m holding my breath and afraid to jinx it, but as of this moment, noon on Monday, we have not heard a Supreme Court decision on whether to stay OSHA’s Emergency Temporary Standard that requires employers with 100 or more employees to ensure that their employees are either vaccinated or tested weekly.
Everyone had expected to hear by now as today is the first deadline under the OSHA standard where unvaccinated workers must be required to wear masks, workers get time off to get vaccinated and employers must document who is vaccinated. By February 9, any workers who are not fully vaccinated must be tested on a weekly basis.
The Supreme Court heard arguments last Friday about whether a stay should be issued, after the 6th Circuit reversed the 5th Circuit’s decision to block the standard. The general consensus among experienced SCOTUS watchers is that they would block it again.
OSHA has announced that no citations will be issued before February 9, “so long as the employer is exercising reasonable, good faith efforts to come into compliance.” Such “enforcement discretion” is not uncommon for OSHA in the early days of a new standard.
Meanwhile, Iowa Labor Commissioner Rod Roberts announced that the state of Iowa will not be adopting or enforcing the Biden administration’s vaccine and testing requirements, even if the Supreme Court allows it to go into effect.
Iowa doesn’t have a standard requiring the Covid-19 vaccine or testing. But after closely reviewing the federal OSHA Vaccine Mandate, Iowa has determined it will not adopt the federal standard. Iowa has concluded that it is not necessary because Iowa’s existing standards are at least as effective as the federal standard change.”
Iowa Governor Kim Reynolds jumped aboard the refusnik train, stating that
I applaud Commissioner Roberts’ decision,” said Gov. Reynolds. “We are going to continue to protect the freedoms and liberties of Iowans. The Biden Administration continues to ignore the constitutional rights afforded to all Americans, which our country was built on. Instead, they’d rather dictate health care decisions and eliminate personal choice, causing our businesses and employees to suffer and exacerbating our workforce shortage.
Governor Reynolds’ press statement concludes that “With Commissioner Roberts’ decision, Iowa OSHA will not be enforcing the federal OSHA Vaccine Mandate. Iowa employers and their employees are not required to comply with the federal OSHA Vaccine Mandate.”
But not so fast.
Iowa is one of 26 OSHA “State Plan” states and Department of Labor Solicitor of Labor Seema Nanda said in a statement Saturday that “we fully expect” states with their own workplace safety and health rules to comply with the vaccine mandate.
OSHA takes state plan requirements seriously. In October, federal OSHA sent letters to three state plans — South Carolina, Utah and Arizona – that refused to adopt the June 2021 Emergency Temporary Standard protecting health care workers, warning them that OSHA would begin proceedings to withdraw their state plans. Two of those states –South Carolina and Utah — have since adopted the standard.
South Carolina Governor Harry McMaster pledged to fight the OSHA standard “to the gates of hell.” He’ll probably have to settle for the gates of the Supreme Court.
Yesterday on CNN, Arkansas Governor Asa Hutchinson urged large businesses in the state not to comply with the Biden administration’s Covid-19 vaccine mandate, saying employers should not follow the “oppressive” rule hours before the order is set to partially go into effect. “They should wait until they get the Supreme Court decision, and of course that’s an individual business decision.” Arkansas is not an OSHA state plan state, so federal OSHA will enforce the law in the state.
Illinois, which has an OSHA state plan that covers only public employees, announced that it had adopted the vax-or-test standard.
If the standard goes into effect and Iowa (or Arizona or South Carolina or any other OSHA state plan states) refuse to adopt it, and OSHA withdraws Iowa’s state plan, then federal OSHA would enforce the standard for Iowa employers. The problem is that it would likely take OSHA longer than than the 6 months the standard is in effect to withdraw Iowa’s state plan status. There are undoubtedly other state plan states that will join Iowa (Arizona and South Carolina come to mind).
That is, of course, if the Supreme Court doesn’t block it the moment I press “publish.”
Which I’m doing. Right. Now.