Could your state still enforce OSHA’s vax-or-test mandate — even if the Supreme Court scuttles it?

Eventually **clicks refresh again on the Supreme Court’s website**, yes, eventually, the Supreme Court is going to decide whether to stay OSHA’s vax-or-test mandate a/k/a the Emergency Temporary Standard a/k/a the ETS.

If the Supreme Court enters a stay, that means the ETS is dead, right?

Well, maybe not everywhere–especially if your state has an OSHA-approved state plan.

What is an OSHA-Approved State Plan?

The Occupational Safety and Health (OSH) Act, which is the authority for the ETS, covers most private sector employers and their workers in the 50 states and certain territories and jurisdictions under federal authority. OSHA covers these employers either directly through OSHA or an OSHA-approved State Plan.

State Plans are OSHA-approved job safety and health programs that individual states operate instead of OSHA. Not all states have State Plans. Indeed, less than half have them.

For the 22 states that participate, OSHA approves and monitors all State Plans. It provides up to half of the funding for each program too. State-run safety and health programs must be as effective as the federal OSHA program.

How does the ETS affect State Plans?

State Plans must adopt a vax-or-test mandate that is as effective as the ETS. For example, OSHA’s position is that a State Plan standard that prohibits employers from requiring vaccination would not be at least as effective as this ETS. OSHA has recognized in this ETS that vaccination is the most protective policy choice for employers to adopt to protect their workplaces.

Participants have 30 days from the promulgation date of the final Federal rule to craft their ETS-style plans. State Plans must notify federal OSHA of the action they will take within 15 days.

Writing here at Bloomberg Law, Chris Marr reports that “State programs were required to inform OSHA by Jan. 7 of their plans for implementing the shot-or-testing mandate. Those states are required to adopt a rule that is at least as effective as the federal standard by Jan. 24.”

The State Plan standard must remain in effect for the duration of the Federal ETS. Participating states that do not comply may lose their State Plan status and federal funding.

Can a state that adopts the OSHA ETS continue to do so if the Supreme Court stays the federal ETS?

It depends. So far, Minnesota is the only participating state that has agreed to adopt and implement the ETS for private employers. (Illinois has done it for public sector workers.) According to my sources, if the Supreme Court invalidates the federal ETS for a substantive reason (e.g., COVID-19 does not present a “grave danger,” or the ETS is not “necessary”), then Minnesota will reconsider whether to implement and enforce its state version of the ETS. However, if the Supreme Court invalidates the federal ETS on other grounds (e.g., an ETS is a state police power), then Minnesota will continue to enforce its state version of the ETS.

I imagine that other participating states (e.g., CA, WA, OR) may do the same. Others (e.g., AZ, KY, TN) not so much — if they adopt a state version of the ETS at all. Iowa, for example, has already said that it will not adopt a state version of the ETS.

Employer takeaways.

1. If your business already has COVID-19 workplace rules that are at least as “effective” as the federal ETS, thanks for humoring me by reading this post.
2. Likewise, if your business doesn’t operate in one of the 22 State Plan states, thanks for reading anyway, nerd.
3. Otherwise, if SCOTUS invalidates the ETS, pay close attention to what your state decides to do about adopting the ETS.