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Demise of OSHA Covid-19 Rule Doesn’t Let Employers Off the Hook

Feb. 22, 2022, 9:00 AM

Many large employers breathed a collective sigh of relief after the U.S. Supreme Court ruled against implementation—and the Biden administration then withdrew—the OSHA Covid-19 shot or test emergency temporary standard. But while the court’s dismantling of the ETS was certainly good news for employers in the 29 states and territories covered by federal OSHA, employers are still not out of OSHA’s regulatory reach when it comes to taking steps to protect employees from Covid-19.

OSHA announced that it will continue its Covid-19 enforcement efforts via the Occupational Safety and Health Act’s general duty clause (which applies to all employers), its Covid-19 National Emphasis Program, and other OSHA standards. And OSHA should be expected to keep its promise. To date, the agency has issued over $4 million in penalties for Covid-19 safety violations, based on the general duty clause and respiratory protection, recordkeeping, and other OSHA standards.

It’s possible that OSHA may attempt to implement a more targeted Covid-19 ETS or permanent standard. Regardless, given the agency’s strong views about Covid-19, there should be no doubt that the agency will continue issuing citations for Covid-19 related safety matters. And if the hefty OSHA penalties aren’t enough to worry employers, the negative media attention employers could receive as a result of OSHA’s practice of publicly shaming employers on its website should make all employers think twice.

Given the lack of a uniform federal Covid-19 safety standard and the vague OSH Act general duty clause, which imprecisely provides that employers keep their workplaces “free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees,” what are employers to do?

The Employer Conundrum

For starters, employers should review OSHA’s Covid-19 Guidance and the CDC’s current mask guidance (which, notably, is more strict than the failed ETS’s mask requirement), since OSHA typically follows the CDC’s lead and citing an employer for not following guidance is fair game.

While there is no “one-size-fits-all” approach, employers should consider requiring social distancing or masks for the unvaccinated in congested workplace areas, and requiring symptomatic employees to stay home, particularly when local community spread is high. Furthermore, employers should put their policies in writing and communicate them to employees through email, workplace signage, and meetings.

It’s no secret that OSHA likes employers to put policies in writing. And if OSHA ever comes knocking, employers with written policies will have a much easier time proving that such policies exist.

Employers also need to consider the patchwork of state and local laws where they operate. New York, for example, enacted the Health and Essential Rights (HERO) Act, which requires employers to implement airborne infectious disease prevention plans.

Even though California’s universal mask mandate ended for vaccinated employees on Feb. 15 (but will remain in effect for unvaccinated employees), Los Angeles and Santa Clara counties announced they will continue the mask mandate for the foreseeable future. And, not to be outdone, in December 2021, New York City issued a vaccine mandate for all employers.

Meanwhile, some states and localities have gone in the opposite direction by prohibiting employers from implementing mask or vaccine mandates. But even in those locations, most employers are free to implement social distancing, testing, symptom checking and other Covid-19- related precautions.

OSHA Isn’t the Only Thing Employers Need to Follow

Regardless of how OSHA tackles Covid-19 issues, employers need to be mindful of other workplace laws and regulations implicated.

Despite clear evidence that Covid-19 spreads between people in multiple ways and therefore can be just as transmissible outside of the workplace as it is in the workplace, an early trend in the pandemic appeared when several states extended workers’ compensation coverage for certain workers to include Covid-19 as a compensable injury or disease.

Similarly, in 2021, the Equal Employment Opportunity Commission updated its guidance, recognizing that Covid-19, like other medical conditions, may constitute a disability under the American’s With Disabilities Act.

A more recent trend relates to Covid-19 vaccines. According to the National Council on Compensation Insurance, Wisconsin, Ohio, Alabama, Kentucky, New Hampshire, Alabama, and South Carolina have introduced, or announced plans to introduce, legislation to either extend workers’ compensation coverage to include an employee’s adverse reaction or injury resulting from an employer vaccine mandate or give vaccine-injured employees the right to bypass the workers’ compensation scheme and sue employers in court for monetary damages.

In addition, Covid-19 “take-home” cases—wrongful death and related lawsuits filed by family members of employees who contracted Covid-19 at work and inevitably brought it home, infecting others—are reportedly on the rise.

Some states have enacted safe harbor immunity laws protecting businesses from such claims, but these laws vary in scope and, in many instances, only afford immunity to businesses if they can demonstrate compliance, or at least a good faith attempt at compliance, with applicable federal, state, and local Covid-19 health standards.

Now that the case is closed on the OSHA ETS, most private employers have more flexibility to implement the best plan for their workforces. What seems clear, however, is employers that choose to eliminate Covid-19 safety precautions altogether likely do so at their own peril.

Sage employers, regardless of where they operate, will continue to implement (and consistently enforce) some minimum workforce protections as long as federal, state, and local Covid-19 related guidance and orders remain in effect.

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

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Kelley Barnett is a labor, employment, and procurement attorney for AmTrust Financial Services. She advises the AmTrust executive team and AmTrust businesses in the U.S., U.K., and Europe on employee relations, harassment, discrimination, benefits, and unfair competition matters, in addition to managing employment litigation matters.