Although the OSHA ETS is Dead, OSHA Can Still Cite Employers for COVID Related Hazards

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By Kathleen J. Jennings (kjj@wimlaw.com)

Today, the U.S. Department of Labor announced the final nail in the coffin of the OSHA COVID-19 Emergency Temporary Standard (ETS). Specifically, the DOL announced that it will withdraw the COVID ETS, effective January 26, 2022. This comes after the U.S. Supreme Court stayed enforcement of the OSHA ETS on January 13, 2022, which guaranteed the ETS’ demise. Rest In Peace, ETS.

OSHA also wants us to know that although it is withdrawing the vaccination and testing ETS as an enforceable emergency temporary standard, OSHA is not withdrawing the ETS as a proposed rule. OSHA is prioritizing its resources to focus on finalizing a permanent COVID-19 Healthcare Standard. OSHA’s Healthcare ETS expired on December 21, 2021.

In the meantime, employers need to be aware that OSHA can–and will–still cite them for COVID-related hazards in the workplace. Rather than base citations on the ETS, OSHA will fall back on its favorite catch-all regulation: the General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health Act (OSH Act). Even before the ETS was enacted, OSHA relied upon the General Duty Clause as the basis of COVID-related citations. In addition to the General Duty Clause, OSHA may look for violations of any of the following standards:

  • 29 CFR Part 1904, Recording and Reporting Occupational Injuries and Illness.
  • 29 CFR § 1910.132, General Requirements-Personal Protective Equipment.
  • 29 CFR § 1910.134, Respiratory Protection.
  • 29 CFR § 1910.141, Sanitation.
  • 29 CFR § 1910.145, Specification for Accident Prevention Signs and Tags.
  • 29 CFR § 1910.1020, Access to Employee Exposure and Medical Records.

Therefore, employers need to be familiar with the OSHA Guidance, Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace and other industry-specific guidance. Have a written plan of action for COVID-19 as part of your safety program.

We can expect that OSHA Area Offices (AOs) will continue to prioritize inspections of COVID-19-related fatalities, multiple hospitalizations, and other unprogrammed activities alleging potential employee exposures to COVID-19-related hazards. Enforcement of protections for workers in non-healthcare industries will focus on unvaccinated or not fully vaccinated workers, including whether such employees are working indoors or outdoors. Additionally, OSHA will implement programmed inspections targeting those non-healthcare industries where OSHA has previously identified increased enforcement activity, and/or establishments with elevated rates of respiratory illnesses.

The Takeaway: Although OSHA cannot require employers to vaccinate or test their employees, OSHA can require employers to take steps to mitigate the hazards presented by COVID-19 in the workplace. Employers should continue to follow OSHA and CDC guidance that describe how to prevent the spread of COVID-19 in the workplace.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

Copyright 2022 by Kathleen J. Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

How To Handle The Employee Who Refuses To Get Vaccinated for COVID-19

Photo by Gustavo Fring on Pexels.com

By Kathleen J. Jennings (kjj@wimlaw.com)

Yesterday, the Biden administration announced that the Labor Department will issue a regulation requiring companies with 100 or more employees to ensure their workforces are either “fully vaccinated” or test negative for Covid-19 at least once a week. The regulation will be issued by OSHA, most likely in the form of an Emergency Temporary Standard (ETS). When enforcing the ETS, OSHA could fine noncomplying businesses up to $14,000 per violation. We anticipate that OSHA will issue the ETS in the next few weeks. We also anticipate that there will be challenges made to the ETS and the authority of the federal government to mandate vaccines.

This is in addition to the expansion of the emergency regulations requiring vaccinations for nursing home workers to include hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies, among others, as a condition for participating in the Medicare and Medicaid programs.

The bottom line is that over 80 million private sector workers are expected to be covered by a COVID-19 vaccine mandate. And some of those workers are going to refuse to get vaccinated, mandate or not. How does an employer deal with the employee who refuses to be vaccinated?

First, find out if the employee has a legitimate reason to refuse to be vaccinated. Legitimate reasons are generally limited to medical (supported by documentation) or a sincerely held religious belief. “I don’t believe in vaccines” is not enough to qualify as a sincerely held religious belief.

Second, if there is no legitimate reason for the employee to refuse a vaccine, the employer should clearly communicate the consequences of not becoming fully vaccinated by a specific date. Can that consequence be termination? Absolutely. Can you require the employee to pay for weekly COVID testing? Possibly. Or require unvaccinated employees to pay a surcharge on their health insurance? Yes–at least one major employer is already doing it.

As with any workplace rule, an employer needs to be consistent in its enforcement of the vaccine mandate or risk claims of discrimination.

What complicates the situation is the current labor shortage in a number of industries. Many businesses cannot afford to terminate all vaccine refusers because they already do not have enough workers. But will there be enough COVID-19 testing facilities to meet the needs of employers who need to test unvaccinated employees weekly? That remains to be seen.

This is a very fluid situation, and I will continue to provide updates.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

Copyright 2021 Kathleen Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.