June 10, 2021Client Alert

OSHA Issues Emergency COVID Rule – New Rules for Health Care, Non-Binding Guidance for Everyone Else

OSHA has released its long-awaited emergency standard related to COVID-19 (Infectious disease). 

The standard is noticeably slimmed down from the nationwide binding workplace safety standard that labor organizations demanded and President Biden originally promised to deliver by this spring. Instead, after widespread deployment of vaccines, and legal hurdles, the rule arrives months late and defanged: new binding standards apply only to the health care industry, while all other industries face lasting questions about their obligations and liabilities in shielding employees from COVID.  

In most states, (other than a few states such as Michigan, California, Oregon and Virginia) we are not going to have a standard applicable to non-healthcare employers based on this announcement.  But we will still have the OSHA general duty clause, bolstered by guidelines from the CDC and OSHA.  The general duty clause requires employers to provide a workplace “free of recognized hazards that may cause death or serious bodily injury.”  OSHA may point to CDC guidance and OSHA’s own guidance as evidence that COVID is a recognized hazard and that feasible protections include those recommended in OSHA and CDC guidelines. Principal among these guidelines are recommendations for face coverings and social distancing for employees who are not vaccinated.


Instead of issuing a standard to all employers, OSHA issued new non-binding guidance. 

Why will OSHA rely on guidance to regulate COVID outside of healthcare, rather than issuing an emergency standard? It is much easier to issue guidance than a standard.  A standard can be challenged because it immediately compels employers to change practices and procedures. While labor organizations and key congressional Democrats first called for an OSHA emergency standard in the early days of the pandemic, more recently employers have argued that there is no emergency, since COVID case numbers continue to decline and there is a vaccine.  It is very likely that a court would have issued an injunction against OSHA based on these arguments.

On the other hand, guidance can only be challenged, if (and when) they are used for enforcement against an employer in a specific case. Therefore, OSHA can apply its enforcement to cases it feels it can win.  Usually those cases involve actual harm to a worker or clear threat of harm. In the case of COVID risks, this will probably involve a case where there is an outbreak, death or serious illness and the employer is not following CDC or OSHA guidance. 

The principal change in OSHA’s new guidance is that instead of referring to CDC guidance it now says that employers who want to relax mask and social distancing should treat non-vaccinated employees differently than vaccinated employees.  It also says employers should make it easier for employees to get a vaccine including providing paid time off to do so.  The new guidelines also say that employers should provide masks for those who have not been vaccinated.  The new guidance devotes specific attention to food production companies and retail environments, two “frontline” industry that advocates say face especially high risks of COVID exposures and outbreaks. 

What this means for the vast majority of employers is the current confusion will continue. Employers will have to decide whether to lift mask and social distancing rules for vaccinated individuals, while still enforcing mask use against the unvaccinated, based upon CDC guidance

Employers will have to decide whether to require proof of vaccination before masks are made optional. Some employers have been considering a blanket vaccination mandate; if no vaccine, then no work on site. Some have implemented that broad vaccination mandate and have been sued. Employers will certainly be watching to see whether mandatory employee vaccination will be allowed or restricted in court challenges, before implementing or dropping their own mandatory vaccine requirements.

Other employers are simply allowing all employees to remove their masks regardless of vaccination status. These employers are among the group most likely to be challenged. While, the lack of an OSHA rule reduces the chances of inspection and citations under OSHA, there still remains some risk that an employee complaint, report of illness or an outbreak of COVID at a workplace, could trigger inspection and citation by OSHA under the general duty clause.

Congressional leaders who advocated for a stronger OSHA standard have already spoken out. House Education and Labor Chairman Bobby Scott (D-VA), whose committee oversees the Department of Labor, branded the new rules “too little, too late” and providing “no meaningful protection” to workers in higher-risk industries and for millions of Americans who aren’t vaccinated yet. However, Scott and other proponents have few tools to force OSHA into action. Democratic-sponsored legislation to impose a stronger standard would not clear the evenly split Senate, where a 60-vote majority is required to overcome a Republican filibuster. Democrats aren’t giving up, however: in a statement tonight, House Speaker Nancy Pelosi (D-CA) said Chairman Scott and House Appropriations Chair Rosa DeLauro (D-CT) will “continue the fight.” DeLauro’s committee will later this month release must-pass bills to fund the Department of Labor among other agencies in the coming fiscal year. DeLauro and allies could use the “power of the purse” to pressure OSHA to issue more binding rules.


Michael Best will evaluate and release an alert regarding the healthcare emergency temporary standard issued today. If you are interested in receiving that alert click here to subscribe to our COVID-19, Labor & Employment and Michael Best Strategies mailing list.  


Michael Best will evaluate and release an alert regarding the OSHA guidelines issued today. If you are interested in receiving that alert click here to subscribe to our COVID-19, Labor & Employment and Michael Best Strategies mailing list.  

Subpart U—COVID-19 Healthcare ETS (

For questions contact your Michael Best Attorney, Strategies Partner, or Michael Best's Workplace Safety and Health team.

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