Auto Care Submits Comments to OSHA Regarding Impact of COVID-19 Vaccine and Testing Mandate on its Members

On Jan. 13, the United States Supreme Court issued a stay on implementation of the COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) that was promulgated by the Occupational Safety and Health Administration (OSHA) on Nov. 5, 2021. The ruling halts for the time being enforcement of OSHA’s ETS requirement that companies with 100 or more employees ensure that their entire workforce is either vaccinated against the COVID-19 virus or testing on a weekly basis.

Prior to the Supreme Court ruling, the Auto Care Association submitted comments to the Occupational Safety and Health Administration (OSHA) regarding the impact of COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) on Auto Care Association members. The association cited the fact that many members have implemented programs to strongly encourage vaccination by their employees. However, Auto Care warned that notwithstanding these efforts, members report that a sizeable number of employees refuse to be vaccinated and many are likely to resign if the mandate is put in place. “There is little doubt that the mandate will place a significant strain on our member’s businesses, that already experiencing a tight labor market and significant supply chain issues,” the association warned.

Auto Care further cited the burden on members for testing employees in order to comply with the ETS. While the ETS does not require companies pay for the testing of their employees, the association stated that “the need to retain their workforce and the likelihood that many employees will continue to refuse to be vaccinated realistically means that these companies will be forced to pay for testing in order to retain their workers and minimize disruptions to their operations, no matter what the ETS states.”

Auto Care also urged OSHA to revise guidance that required companies to count all employees in a company in meeting the 100 person threshold “The decision to count all employees in a company ignores the fact that compliance with the ETS will be felt by companies at the local level since it is the people on the ground at each facility that will be forced to contend with the vaccination verification requirements, as well as the administration of the weekly testing mandate.” The association urged OSHA to issue guidance such that ETS compliance be applicable based on numbers of employees at each location rather that the total number of employees at an entire company.

It should be noted that the stay recently issued by the Supreme Court is pending the outcome of a decision on the merits by the Sixth Circuit and any subsequent petition for review of that decision to the Supreme Court. However, the Court’s majority stated in its ruling that it does not believe OSHA has the authority to issue the standard, making it unlikely, but not impossible for the ETS to be reinstated.

The Supreme Court ruling can be found here. The Auto Care Association’s comments submitted to OSHA can be viewed here.