OSHA’s Next Steps Towards a COVID-19 Standard

What Employers Need to Know About OSHA’s Emergency Temporary Standard (ETS) 

As of January 25th, 2022, OSHA issued a notice withdrawing the currently stayed Vaccinate or Test ETS that applied to employers with 100+ employees. This action will end the debate over whether OSHA has the authority to issue such an emergency temporary standard. 

 However, OSHA also stated that the organization plans to pursue a permanent standard: 

“Although OSHA is withdrawing the Vaccination and Testing ETS as an enforceable emergency temporary standard, OSHA is not withdrawingthe 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). Notwithstanding the withdrawal of the Vaccination and Testing ETS, OSHA continues to strongly encourage the vaccination of workers against the continuing dangers posed by COVID-19 in the workplace.” 

Looking ahead, will the ETS be revived in the form of a permanent COVID-19 standard? Possibly. The process will not be overnight, but we do expect future decisions and announcements by OSHA. 

For now, employers can expect OSHA to continue inspecting workplaces for COVID-19 hazards and issuing citations for violations of existing OSHA standards that could implicate COVID or use the General Duty Clause, while continuing to pursue its COVID-19 National Emphasis Program.  

The possibility still exists that OSHA may pursue a more targeted emergency standard, which SCOTUS seems to approve of based on its January 13th ruling. 

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