Jacqueline C. Hawkins, esq,
OSHA’s ETS- WITHDRAWN
OSHA has withdrawn the vaccination and testing Emergency Temporary Standard pertaining to large employers effective today, January 26, 2022. This withdrawal comes on the heels of the Supreme Court’s decision to stay its enforcement indefinitely.
The ETS, first announced by President Joe Biden on November 5th, 2021, was immediately challenged by numerous states and private companies. The Supreme Court issued a stay on January 13, 2022, allowing time for the Federal Appeals Court to consider its legality. On January 25, 2022, OSHA announced its decision to formally withdraw its ETS.
In a statement released by OSHA and published in the Register, “After evaluating the Court’s decision, OSHA is withdrawing the Vaccination and Testing ETS as an enforceable emergency temporary standard.” Per the OSHA website, “Although OSHA is withdrawing the vaccination and testing ETS as an enforceable emergency temporary standard, the agency is not withdrawing the ETS as a proposed rule. The agency is prioritizing its resources to focus on finalizing a permanent COVID-19 Healthcare Standard.”
Given the Supreme Court’s decision, OSHA cannot now adopt a regular standard that looks just like the ETS. To continue with the proposal, OSHA will have to narrow the scope of the standard, likely focusing on what deems to be high-hazard industries.
Although likely we will see some sort of regular COVID-19 standard proposed in 2022 there is no clear indication as to what that will look like. One thing known for sure is that it cannot look just like the ETS OSHA has withdrawn.
What now for Employers?
As it sits currently, employers no longer have to implement policies to comply with the OSHA ETS. Employers remain free to establish appropriate COVID-19 policies, subject to state law restrictions and federal and state requirements for providing reasonable accommodations based on disability and religion.
Employers must abide by the OSHA general duty clause, meaning all employers must provide a work environment that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” You can expect OSHA to continue to inspect worksites for COVID-19 safety practices.
Employers should pay attention to the COVID-19 guidance issued by OSHA and the CDC. In that, OSHA recommends that employers encourage employees to get vaccinated; provide paid time off for vaccination; ensure rooms are properly ventilated; set rules for masking, physical distancing and practicing good hygiene; and have protocols in place for employees to follow if they test positive for COVID-19.
The most important thing is employers should know the withdrawal of the ETS doesn’t mean there is nothing more to do. Employers should consider what policies work best for their organization, industry and culture, and consider the tools available to combat the virus such as masks, testing options, remote work and social distancing options.