Publication

Effective January 26, 2022, OSHA has withdrawn its COVID-19 “Vaccine or Test” Emergency Temporary Standard that required employers with 100 or more employees to implement a policy providing for the following elements:

• Masking for unvaccinated workers
• Weekly testing for unvaccinated workers
• Quarantine of workers who test positive
• Pay for time off to get vaccinated
• Paid time off to recover from side effects from vaccine
• Education about the efficacy and safety of vaccines
• Maintaining a roster of worker vaccination status
• Changes in the reporting obligations for COVID-19 related hospitalizations or deaths

This withdrawal was prompted by the Supreme Court reinstatement of the “Stay” against the OSHA “Vaccine or Test” mandate. As noted above, the elements of the standard included more than just testing and vaccinating, but the entire standard has been withdrawn. 

Because a stay is just a preliminary order, the case was remanded to the 6th Circuit Court of Appeals to issue a decision consistent with the Supreme Court Temporary Stay decision. While the 6th Circuit might have preserved some of the other elements of the OSHA ETS that were not a vaccine mandate, it was not surprising that OSHA withdrew the ETS entirely. Without the vaccine or test requirement, it is likely OSHA felt the ETS was so diluted that OSHA was better off either, starting over on a standard that might survive a legal challenge and/or enforcing COVID-19 safety under the OSHA General Duty Clause. The statements issued by OSHA and the Department of Labor demonstrate this. 

Secretary of Labor Marty Walsh stated at the time of the Supreme Court decision as follows:

We urge all employers to require workers to get vaccinated or tested weekly to most effectively fight this deadly virus in the workplace. Employers are responsible for the safety of their workers on the job, and OSHA has comprehensive COVID-19 guidance to help them uphold their obligation.  Regardless of the ultimate outcome of these proceedings, OSHA will do everything in its existing authority to hold businesses accountable for protecting workers, including under the COVID-19 National Emphasis Program and General Duty Clause.” 

OSHA’s announcement that it was withdrawing the ETS also contained the following statement:

Although OSHA is withdrawing the Vaccination and Testing ETS as an enforceable emergency temporary standard, OSHA is not withdrawing the ETS to the extent that it serves as a proposed rule under section 6(c)(3) of the Act, and this action does not affect the ETS’s status as a proposal under section 6(b) of the Act or otherwise affect the status of the notice-and-comment rulemaking commenced by the Vaccination and Testing ETS. See 29 U.S.C. 655(c)(3).

Based upon these two statements, OSHA is likely to inspect and cite employers who have outbreaks, hospitalizations, or deaths under its general duty clause as an interim measure. What OSHA may do in the future is implement some scaled-down permanent infectious disease standard without going through further notice and comment. When OSHA issued the ETS, it solicited notice and comment regarding a permanent standard and the comment period closed on January 19, 2022. 

The Supreme Court did say in its decision that OSHA could regulate occupation-specific risks related to COVID-19 as follows:

Where the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are plainly permissible.  We do not doubt, for example, that OSHA could regulate researcher’s work with COVID-19 virus.  So too could OSHA regulate risks associated with working in particularly crowded or cramped environments.  But the danger present in such workplaces differs in both degree and kind from the everyday risk of contracting COVID-19 that all face.  OSHA’s indiscriminate approach fails to account for this crucial distinction (between occupational risk and risk more generally) – and accordingly the mandate takes on the character of a general public health measure, rather than an “occupational safety or health standard.”

It is possible that OSHA could issue a slimmed-down standard similar to its ETS applicable to, for instance, meat and other food packaging companies, because of the close quarters in which the employees work. Early in the pandemic, OSHA focused on these businesses because outbreaks were occurring at some of the meat and food packaging companies across the country. 

It is likely that OSHA will pause on any further rulemaking for a period of time, in order to watch the developments arising from the Omicron variant and determine whether the current outbreak results in the virus becoming a less severe endemic, or instead grows into other severe variants that propel the pandemic forward with more contagious and serious illnesses.

What Should Employers Do Now?

Since OSHA has announced a plan to enforce under the General Duty Clause, employers need to be able to identify how they are meeting their general duty to protect employees from workplace COVID-19 infection. What is the source of that General Duty?  

In order to issue a General Duty violation, OSHA must prove there is a recognized hazard that poses the risk of death or serious harm, and that there is a feasible means of protection. The recognition and “feasible” means of protection are generally identified in industry consensus standards or other guidance documents. Certainly, CDC guidance could be identified as a source for the employer’s general duty, but as we have all experienced, that guidance changes rapidly and contains so much detail, it is difficult to know exactly what parts of the guidance will meet the duty. Another source is OSHA’s own guidance. 

Obviously, OSHA would consider an employer to meet this general duty to protect worker safety if the employer followed the elements of the ETS that has now been withdrawn. But for many employers that “vaccine or test” mandate was a bridge too far. Prior to the issuance of the OSHA ETS in September 2021, OSHA had issued a document entitled Protecting Workers: Guidance On Mitigating And Preventing The Spread Of COVID-19 In The Workplace found here. At that time, we wrote about the guidance that had been issued here.

This August 2021 guidance identified 11 elements to describe the role of employers in protecting workers as follows:

1. Facilitate employees getting vaccinated.
2. Instruct any workers who are infected, unvaccinated workers who have had close contact with someone who tested positive, and all workers with COVID-19 symptoms to stay home from work.
3. Implement physical distancing in all communal work areas for unvaccinated and otherwise at-risk workers.
4. Provide workers with face coverings or surgical masks as appropriate.
5. Educate and train workers on your COVID-19 policies and procedures.
6. Suggest or require that unvaccinated customers, visitors, or guests wear face coverings.
7. Maintain ventilation systems.
8. Perform routine cleaning and disinfection.
9. Record and report COVID-19 infections and deaths.
10. Implement protection from retaliation and set up an anonymous process for workers to voice concerns.
11. Follow other applicable mandatory OSHA standards including those governing PPE, respiratory protection, sanitation, employee access to medical and exposure records.

Note that this guidance does not require a vaccine or test approach, though it does encourage it. 

Now that the Supreme Court and OSHA have dialed the clock back to the guidelines that existed prior to the issuance of the ETS in September 2021, employers should pay attention to the 11 elements from the August 2021 guidance listed above. If you implemented a COVID-19 policy already, consider updating it to address these 11 elements, and watch for any new announcements from OSHA in the coming weeks. While the ETS contained a business size threshold, the OSHA General Duty Clause applies to all employers, so this guidance is not limited to employers with 100 or more employees. 

Finally, if you are in the health care industry, OSHA also withdrew the Healthcare ETS in December because it expired. However, OSHA will pursue a permanent standard for healthcare in the coming months.  It may make sense to continue to follow the Healthcare ETS. At a minimum, healthcare employers should have a policy that addresses the above elements, and if the employer receives Medicare or Medicaid, the employer is also required to mandate vaccination under the Centers for Medicare and Medicaid Services rule (discussed here), in addition to these other precautions.   

How We Can Help

Michael Best can help make sure your approach is both within the law and aligned with your organization’s needs and culture. Our Vaccination Policy Tool Kit is designed to cut through the confusion and empower you to make informed decisions. It provides practical advice and templates to help employers create their own workplace vaccination approach. We have updated it to address these deadlines, and will continue to update and notify subscribers with revised policies, forms, and communications as future developments occur.

Check out our COVID-19 Vaccination Policy Tool Kit!

If you need assistance setting up your policies, testing process, employee benefits, document management our COVID 19 response team is here to help.