New OSHA regs? Supreme Court ruling against vax mandate could trigger new rules

WASHINGTON — Large private companies, for now, will be able to set their own work force vaccination and testing requirements voluntarily, following a U.S. Supreme Court decision last week that blocked the Biden administration from enforcing a federal mandate.

The Department of Labor's Occupational Safety and Health Administration issued an emergency temporary standard in November that would have required companies with 100 or more employees to ensure their workers are fully vaccinated against COVID-19 or require them to produce a negative test result on at least a weekly basis.

The mandate would have affected more than 84 million U.S. workers.

But the court may have left open the possibility for OSHA to issue a narrower set of regulations targeted at certain work environments, including manufacturing.

"Where the virus poses a special danger because of the particular features of an employee's job or workplace, targeted regulations are plainly permissible," according to the court's opinion.

"So too could OSHA regulate risks associated with working in particularly crowded or cramped environments."

Whether OSHA accepts that invitation "remains an open question," James Hermon, a member in Dykema's labor and employment practice group, told Automotive News.

"At the very least, manufacturers can expect to be subject to citations for [OSHA] General Duty Clause violations where there are COVID outbreaks tied to workplace exposures," he said. "It is also possible that states and localities will issue their own health and safety requirements, creating a confusing patchwork of regulation that companies with facilities in multiple locations will have to navigate."

Despite the court's ruling, auto companies should still establish "strict on-site hygiene protocols" to prevent the spread of COVID-19, according to Rahim Rajwani, a corporate risk management specialist who is CEO of Triumph Advisors.

Several automakers told Automotive News last week that they were encouraging eligible employees to get vaccinated. No major automakers thus far have required vaccinations for all employees.