OSHA’s Vaccine ETS Blocked by Supreme Court, Original ETS Now Expired

On January 13th, 2022, the Supreme Court stayed OSHA’s ETS requiring employers with over 100 employees to either require vaccination or require weekly testing of unvaccinated workers.  The case returns to the Sixth Circuit court of Appeals.  The Supreme Court found the standard far too broad.  If OSHA’s standard had addressed specific hazardous features of an employee’s job or workplace, it may have been upheld.

At this time, the requirements of the OSHA Vaccination and Testing ETS for employers with 100 or more employees need not be implemented.  We will issue more information as the Sixth Circuit Court of Appeals rules further.

In addition, OSHA’s original COVID Healthcare ETS has been withdrawn, other than the recordkeeping portions.  This does not mean that all COVID-19 measures can now come to an end.  In fact, OSHA fully intends to utilize the General Duty Clause to ensure that healthcare entities continue to protect employees from infectious disease hazards.  In addition, an infectious disease final rule is being expedited, and may be published within the first quarter of 2022.  This has been documented in the agency’s regulatory agenda.

Eagle Associates advises that all healthcare employers continue with existing COVID-19 protocols such as screening, PPE and engineering controls. Certain provisions, such as medical removal benefits are now expired, but safety protocols that have been implemented should remain in place.  Failing to do so would place workers at risk, and your organization would be vulnerable to OSHA enforcement actions.

Please see the quotes from OSHA below and contact our office if there are questions on maintaining protective measures with regard to infectious diseases such as COVID-19.

“OSHA announces today that it intends to continue to work expeditiously to issue a final standard that will protect healthcare workers from COVID-19 hazards, and will do so as it also considers its broader infectious disease rulemaking. However, given that OSHA anticipates a final rule cannot be completed in a timeframe approaching the one contemplated by the OSH Act, OSHA also announces today that it is withdrawing the non-recordkeeping portions of the healthcare ETS. The COVID-19 log and reporting provisions, 29 CFR 1910.502(q)(2)(ii), (q)(3)(ii)-(iv), and (r), remain in effect.”

“With the rise of the Delta variant this fall, and now the spread of the Omicron variant this winter, OSHA believes the danger faced by healthcare workers continues to be of the highest concern and measures to prevent the spread of COVID-19 are still needed to protect them. Given these facts, and given OSHA’s anticipated finalization of this rule, OSHA strongly encourages all healthcare employers to continue to implement the ETS’s requirements in order to protect employees from a hazard that too often causes death or serious physical harm to employees.”

“As OSHA works towards a permanent regulatory solution, OSHA will vigorously enforce the general duty clause and its general standards, including the Personal Protective Equipment (PPE) and Respiratory Protection Standards, to help protect healthcare employees from the hazard of COVID-19. The Respiratory Protection Standard applies to personnel providing care to persons who are suspected or confirmed to have COVID-19. OSHA will accept compliance with the terms of the Healthcare ETS as satisfying employers’ related obligations under the general duty clause, respiratory protection, and PPE standards. Continued adherence to the terms of the healthcare ETS is the simplest way for employers in healthcare settings to protect their employees’ health and ensure compliance with their OSH Act obligations.”