Life support

OSHA ETS is on life support, but it’s not the end of the road

As we enter the third year of the Covid-19 pandemic, occupational safety and health compliance issues are not getting any easier or clearer.

On January 13, the United States Supreme Court issued its decision suspend the Occupational Safety and Health Administration’s temporary emergency vaccine or test standard (ETS), referring the matter to the Sixth Circuit for a decision on the merits.

The stay remains in effect until the case returns to the Supreme Court on writs of motions for certiorari and would automatically dissolve if the court dismisses the motions. If he grants certiorari, the stay will remain in effect until the high court renders its decision on the merits.

Despite this decision, the court does not prevent OSHA from regulating Covid-19 when it may constitute an occupational hazard or present a particular danger, such as researchers in a laboratory working with the Covid-19 virus or in “particularly cramped or crowded environments”. ”

What seems clear, however, is that if ETS returns to the Supreme Court on the merits, it is likely dead on arrival.

Findings of the Court

The Supreme Court concluded that the ETS is ‘a general public health measure, rather than a ‘professional safety or health standard. He found that the ETS is beyond the scope of OSHA’s congressionally delegated authority.

The court questioned whether public health is generally even within OSHA’s expertise. He also expressed concern about the lack of precision in targeting specific work environments where Covid-19 could be an occupational hazard, operating more like a ‘blind’ ‘blunt instrument’ which is also ‘a significant encroachment on the life and health of a large number of employees.

In granting the emergency motions to suspend the ETS, the court noted that the petitioners would suffer irreparable harm and that the balance of the actions required such relief.

What happens next at OSHA?

The emergency rule itself acts as a notice of proposed rulemaking that the agency uses to solicit stakeholder input as part of the normal rulemaking process under the Administrative Procedures Act. OSHA will analyze those comments and may issue a more narrowly tailored permanent rule where Covid-19 is truly an occupational hazard, which the Supreme Court says could pass the constitutional test.

OSHA also announced in its Fall 2021 Regulatory Agenda that it is targeting April for a standard on permanent airborne infectious diseases. This standard will likely take into account stakeholder feedback on the current ETS, but may also address airborne infectious diseases beyond Covid-19, including tuberculosis (TB), varicella (chickenpox, shingles) and measles , as well as new and emerging diseases. infectious disease threats, such as severe acute respiratory syndrome (SARS) and pandemic influenza.

It is unclear whether such a standard will apply only to healthcare or to all industries, or somewhere in between.

When OSHA withdrew the temporary emergency health care standard it issued on June 21, 2021, it warned that it would vigorously use the OHS Act’s general duty clause, as well as the respiratory and other standards, to enforce occupational safety and health in private employment.

Health care and other industries previously dubbed by OSHA as high-risk industries, such as meat and poultry processing, manufacturing and warehousing, restaurants, supermarkets and others, will be targeted for application through July 7 under OSHA. Updated National Emphasis Program (NEP) for Covid-19.

OSHA has issued a similar warning for employers in a declaration she issued regarding the Supreme Court’s decision to suspend the ETS. “Regardless of the end result of these procedures, OSHA will do everything in its power to hold companies accountable for protecting workers, including under the National Covid-19 Emphasis Program and the Safety Clause. ‘general duty’.

Whether OSHA publishes a permanent, but more targeted Covid-19 standard, a broader permanent standard for airborne infectious diseases, or that vaccination mandates be left to states and private employers for implementation , employers still have a legal obligation to provide a safe and healthy work environment for their employees.

Employers should assess the danger of Covid-19 in their work environment to determine appropriate and feasible mitigation strategies.

But OSHA should also exercise the discretion it has announced when evaluating employers’ good faith efforts to mitigate these risks as we all continue to navigate these uncharted waters together.

This article does not necessarily reflect the views of the Bureau of National Affairs, Inc., publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Author Information

Melanie L. Paul is director of the Atlanta office of Jackson Lewis PC. She co-leads the firm’s occupational safety and health practice group and focuses on occupational safety and health compliance, advice and litigation.


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