On January 25, OSHA withdrew the Emergency Temporary Standard (ETS) issued to keep workers in companies employing more than 100 workers safe from COVID-19 exposure and illness. Although the ETS has ended, OSHA’s efforts to keep employees safe against workplace disease and exposure continue.
According to OSHA’s website,
Under certain limited conditions, OSHA is authorized to set emergency temporary standards that take effect immediately and are in effect until superseded by a permanent standard.
The 6-month time period an ETS is in place allows time for a more permanent plan to be developed by agencies. That process involves several time-consuming steps including issuing a notice of proposed rulemaking and allowing sufficient time to hear comments on the suggested guidance. It typically takes longer than the 6-month lifespan of an ETS, so both often begin at the same time.
OSHA has been working to develop a more permanent standard and will continue doing so, even after the dismissal of the ETS. The next step is to consult with other federal agencies, such as the Department of Health and Human Services and Department of Labor and call for comments from others having an interest in the standard. A public hearing will be held to take comments. At this stage, the rule may need to be amended prior to being finalized, based on arguments made during the comment period. Once the final text is approved, an effective date will be set, and it will become published in the Federal Register as enforceable guidance.
It is too soon to know what the new rule will look like when drafted, but the debate that followed the issuance of the ETS in November 2021 has allowed OSHA time to consider what will be most effective in the workplace. The comments made by the Supreme Court may influence the content of the new standard, as could other comments made on both sides of the ETS. It is too soon to know whether OSHA will tuck new guidance into the existing General Duty Clause or develop a larger sweeping standard to specifically address topics such as vaccination and mask wearing. Either way, the process is expected to take time.
While employers wait for further guidance, it is advised to continue following safety measures in the workplace. Whether a vaccination mandate was issued, masking protocol has been adopted, or other preventative measures have been put in place, it remains the responsibility of employers required to comply with OSHA’s General Duty Clause to take steps toward providing "a work environment free from recognized hazards that are causing or are likely to cause death or serious physical harm."
Employers may continue enforcing policies that were put in place prior to the dismissal of the ETS. For example, companies may continue to require employees to be vaccinated and provide proof of vaccination status, if that is allowed by state and local law. Companies may also continue offering incentives to vaccinated employees, such as reduced insurance premiums, but are reminded that exemptions should be allowed and alternatives should be provided to those unable to comply due to an underlying health condition or sincerely held religious belief. On the other hand, employers may discontinue practices put in place while the ETS was in effect, such as making vaccination a requirement of employment.
Regardless of the direction OSHA decides to go with new standards, more permanent guidance is imminent.
MRA will continue to provide more information as it becomes available.