Can the Occupational Health and Safety Administration (OSHA) Regulate Employee Healthcare Policies Concerning COVID-19?

Donald G. Drinko By Donald G. Drinko, Gary D. Baker Jr.

On January 13, 2022, the United States Supreme Court, by a 6-3 vote, blocked the current Presidential administration’s attempt to enforce a vaccine-or-testing mandate for large employers. NFIB v. OSHA, 595 U. S. 9(2022).  The proposed mandate would have applied to all employers with at least 100 employees, and would have required all covered employees to receive a COVID-19 vaccine, or be tested weekly and wear a mask at the workplace. The Court’s decision provides insight into whether COVID-19 is viewed as an occupational disease.

In the per curiam opinion, the Court held that although the risks associated with COVID-19 occur in many workplaces, “it is not an occupational hazard in most.” Id. at 6. The Court noted that COVID-19 can spread at home, in schools, and everywhere people gather, and the universal risk it poses is no different than the day-to-day dangers that we all face. Id. 6-7. Essentially, the Court reaffirmed that COVID-19 makes a poor occupational disease, as it is not a risk that is specific to most workplaces, and concluded that just because people who work can get COVID-19 does not give OSHA the authority to regulate medical care of all workers under the auspices of protecting their health. The Court also noted that the mandate did not draw distinctions based on industry or risk of exposure, but they went on to indicate that, under the statute, OSHA would have authority to regulate occupation-specific risks associated with COVID-19. Id. 3-4. Ultimately the Court found that the mandate, “takes on the character of a general public health measure, rather than an ‘occupational safety or health standard.’” Id. at 7. Conversely, also on January 13, 2022, in another per curiam opinion, the Court affirmed a mandate requiring vaccinations for healthcare workers that work in places that accept Medicare and Medicaid. Biden v. Missouri, 595 U. S. 8 (2022)

The direct impact these decisions will have is specific to the law, but will likely affect interpretations of new statutes. Employers can still require vaccinations, and do other things, like reward vaccinated employees or enact insurance surcharges for unvaccinated employees. Also, the Supreme Court’s logic that COVID-19 is not an occupational hazard in most workplaces should bolster a defense to workers’ compensation claims alleging COVID-19 developed in the course and scope of the injured worker’s employment. Applying the language of the Supreme Court means that most jobs do not create a risk of contracting the disease in a manner greater than the general public. This is a requirement, for example, under Ohio’s statute for occupational diseases, R.C. §4123.68.

If you would like to submit a question to Shop talk, or would like to discuss this or any other workers’ compensation issues, please feel free to contact me or my associate Gary Baker.