Bloomberg Law
Jan. 18, 2022, 9:00 AM

OSHA ETS Is on Life Support, But It’s Not the End of the Road

Melanie L.  Paul
Melanie L. Paul
Jackson Lewis P.C.

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

On Jan. 13, the U.S. Supreme Court issued its decision staying the Occupational Safety and Health Administration’s vaccine-or-test emergency temporary standard (ETS), sending the case back the Sixth Circuit for a decision on the merits.

The stay remains in effect until the case returns to the Supreme Court on writs for petitions for certiorari and would automatically dissolve if the court denies the petitions. If it grants certiorari, the stay will remain in place until the high court issues its decision on the merits.

Despite this ruling, the court does not foreclose OSHA’s ability to regulate Covid-19 where it may be an occupational hazard or pose a special danger, like researchers in a lab working with the Covid-19 virus or in “particularly cramped or crowded environments.”

What appears clear, however, is that should the ETS make its way back to the Supreme Court on the merits, it is likely to be dead on arrival.

Court’s Findings

The Supreme Court found the ETS is “a general public health measure, rather than an ‘occupational safety or health standard.’” It found the ETS exceeds the scope of OSHA’s authority delegated by Congress.

The court questioned whether public health generally even falls within OSHA’s expertise. It also expressed concern with the lack of precision in targeting specific work environments where Covid-19 might be an occupational hazard, operating instead as an “indiscriminate” “blunt instrument” that is also “a significant encroachment into the lives—and health—of a vast number of employees.”

In granting the emergency petitions to stay the ETS, the court noted the petitioners would suffer irreparable harm and the balance of the equities necessitate such relief.

What Happens Next at OSHA?

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

OSHA has also announced in its fall 2021 regulatory agenda that it is targeting April for a permanent airborne infection disease standard. This standard likely will consider the comments from stakeholders on the current ETS, but may also address airborne infectious diseases beyond just Covid-19, including tuberculosis (TB), varicella disease (chickenpox, shingles), and measles, as well as new and emerging infectious disease threats, such as severe acute respiratory syndrome (SARS), and pandemic influenza.

Whether such a standard will apply to just health care or all industries, or somewhere in between, is unknown at this point.

When OSHA withdrew the health-care emergency temporary standard it published on June 21, 2021, it warned that it will vigorously use the general duty clause of the OSH Act, as well as the respiratory and other standards, to enforce workplace safety and health in private employment.

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

OSHA has issued a similar warning for employers in a statement it issued regarding the Supreme Court’s decision to stay the ETS. “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.”

Whether OSHA issues a permanent, but more targeted, Covid-19 standard, a broader permanent standard for airborne infectious diseases, or whether vaccine mandates are left to the states and private employers to implement, employers still have a legal duty to provide a safe and healthful work environment for their employees.

Employers should evaluate the Covid-19 hazard in their work environments to determine the appropriate and feasible mitigation strategies.

But OSHA should also exercise the discretion it said it would when evaluating employers’ good-faith efforts to mitigate those hazards as we all continue to navigate these unchartered waters together.

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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Author Information

Melanie L. Paul is a principal in the Atlanta office of Jackson Lewis P.C. She is co-leader of the firm’s Workplace Safety and Health practice group and focuses on occupational safety and health compliance, advice, and litigation.

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