The U.S. Supreme Court issued a stay of the OSHA Emergency Temporary Standard on January 13, 2022. The ruling effectively blocks federal enforcement of the OSHA ETS. The order does not affect enforcement by state agencies who chose to adopt the federal standards in their states.

OSHA Emergency Temporary Standard

Barring a stay from the U.S Supreme Court the Occupational Safety and Health Administration (OSHA) will begin enforcement of the Biden administration’s OSHA ETS regulations on Jan 10, 2022. Violations of the OSHA emergency temporary standard could result in fines up to $13,653 per incident.

Background on OSHA ETS

An OSHA ETS that was limited to healthcare employees was first issued in June 2021. On September 9, 2021, President Biden directed OSHA to create an emergency temporary standard requiring full vaccinations or testing for all employers with 100 or more employees company-wide.

The OSHA emergency temporary standard was published November 5, 2021, and was immediately challenged in 12 of 13 federal circuits. The Fifth Circuit Court of Appeals issued an order to stay the ruling the following day. All pending reviews were transferred to the Sixth Circuit where a 2-1 decision overturned the stay.

Following two requests to review the Sixth Circuit stay, the U.S. Supreme Court scheduled oral arguments for January 7, 2022. A ruling is expected soon afterward.

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Requirements of OSHA ETS

The OSHA emergency temporary standard (ETS) and its requirements apply to two-thirds of all businesses in this country. There are specific requirements to be in compliance with the new standard. A few of these requirements are:

  • Businesses must have an OSHA ETS-compliant policy in place. This policy must meet the requirement of the emergency temporary standard and must be communicated to all employees.
  • Businesses must collect vaccination data. Business owners must confirm which employees have been vaccinated. Documentation of the vaccination must also be provided and a copy must be retained. Asking to see someone’s proof of vaccination is not a HIPAA violation.
  • Businesses must require unvaccinated employees to wear masks while at work. Masks may be provided by the employer or the employee, but they must be worn.
  • Businesses with unvaccinated employees must test them weekly. This applies to unvaccinated employees who have been granted reasonable accommodations due to disability or sincerely held religious beliefs.

The OSHA emergency temporary standard does not specify the type of policy businesses are required to have. But whether you choose to require all employees to be vaccinated or not, you must follow the new OSHA ETS guidelines. OSHA has prepared an FAQ with further guidance for employers on its website.

Final Thoughts on OSHA ETS

OSHA has stated that businesses acting in “good faith” to comply with the OSHA ETS will have until February 9, 2022, to become fully compliant. This is in addition to all of the other regulations that are involved in being OSHA Compliant. But the agency has proven in the past that they are serious about OSHA COVID-19 enforcement.

Employees covered under the previous OSHA emergency temporary standard for healthcare workers were specifically exempted from the new OSHA ETS. The healthcare-only ETS has been mostly withdrawn and is expected to be inactivated soon. However, OSHA’s position is that those workers will be covered under the OSHA emergency temporary standard currently being appealed.

Remember that states are permitted to make rules that are more protective than OSHA’s. California Occupational Safety and Health has just made a second revision to its Cal/OSHA ETS that goes into effect on January 14, 2022. It contains provisions that go beyond what OSHA is proposing. States are not permitted to ignore federal standards if the state standards are not as protective. 

COVID-19 continues to create new challenges for healthcare providers and business associates who are trying to remain OSHA compliant. New variants mean new standards with new policies and procedures that must be understood and implemented to avoid penalties.

Our team is experienced with OSHA compliance and has the tools, tips, and training to keep your business on the right track.

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