OSHA withdraws its COVID 19 ETS as of 1/26

Published January 27, 2022

Categories: Safety, COVID, OSHA

The Supreme Court blocked the federal requirement for COVID vaccines or testing earlier this month.

Directly thereafter, OSHA revisited its own mandate-or-testing rule for large employers. And, as of yesterday, Jan. 26, 2022, OSHA withdrew their Emergency Temporary Standard (ETS) that would have required employers with at least 100 workers to require COVID vaccines or weekly testing for unvaccinated workers.

What does this mean for large employers and their employees?

In announcing the withdrawal of the enforceable ETS, OSHA stated that it is still proposing that the details of the ETS be proposed as a permanent rule. OSHA is also making it a priority to focus on the establishment of a COVID-19 health care standard for workplaces and in their statement, OSHA echoed that it "strongly encourages vaccination of workers against the continuing dangers posed by COVID-19 in the workplace."

As reported by Ty West (editor in chief of the Playbook), many companies were concerned about the short and long-term implications of the ETS due to recruitment and retention concerns. In addition, the oversight required to police vaccination status and maintain a testing log presented administrative complexities that many companies are not prepared to handle.

However, despite the recent blocking and withdrawal of the ETS, employers should be ready for the eventual implementation of a permanent mandate-or-test rule. In fact, OSHA is accepting public comments on that potential rule - and public comments do play a role in shaping policy outcomes.

It is worthwhile to note that a permanent rule may also impact smaller employers that were previously exempt under the ETS.

The prevailing wisdom suggests that in order to have a successful permanent order, OSHA needs to narrow the scope of impacted employers by developing a list of the types of workplaces where OSHA can illustrate an occupational hazard as a result of exposure to COVID-19.

As always: Don't ignore safety issues!

OSHA has already issued hundreds of citations as it turns its attention to holding business accounting under its COVID-19 National Emphasis Program and its standing General Duty Clause, as predicted by Brittany Barrientos (partner at Stinson LLP). The agency already has COVID-19 guidance established which includes masking, social distancing, and COVID-19 policies to prevent infected workers from coming to work.

Bottom line: OSHA can't actually enforce its COVID-19 guidance BUT it can (and will) rely on its General Duty Clause authority and issue citations for lack of COVID-19 policies designed to protect the health of the workers.