Update on OSHA's COVID-19 Vaccination, Testing and Face Covering ETS
By Susen Trail | 01/15/2022
When the 6th Circuit Court lifted the stay rule by the 5th Circuit Court, OSHA's enforcement of the Emergency Temporary Standard (ETS) for Vaccination, Testing, and Face Coverings 1910.501 began on January 10, 2022. This created immediate and large costs to businesses, potential loss of good employees, as well as risks of fines up to $136,532 per willful violation (when you can't prove that you did not know what you are supposed to do.)
The over 60 petitioners to the 6th Circuit Court went over their heads to the Supreme Court of the United States (SCOTUS) requesting a stay until the court has had time to hear and decide on the case. SCOTUS stated in its written decision:
"Applicants now seek emergency relief from this Court, arguing that OSHA's mandate exceeds its statutory authority and is otherwise unlawful. Agreeing that applicants are likely to prevail, we grant their applications and stay the rule."
SCOTUS published their written opinion (in other courts it would be a ruling) in the afternoon of January 13, 2022. In this statement in the opinion SCOTUS makes it very clear that their opinion that the ETS exceeds OSHA's congressional authorized authority.
"The question, then, is whether the Act plainly authorizes the Secretary's mandate. It does not. The Act empowers the Secretary to set workplace safety standards, not broad public health measures. See 29 U. S. C. §655(b) (directing the Secretary to set 'occupational safety and health standards' (emphasis added)); §655(c)(1) (authorizing the Secretary to impose emergency temporary standards necessary to protect 'employees' from grave danger in the workplace). Confirming the point, the Act's provisions typically speak to hazards that employees face at work. See, e.g., §§651, 653, 657. And no provision of the Act addresses public health more generally, which falls outside of OSHA's sphere of expertise."
In prior pandemics OSHA has provided guidance to employers but has also stated that they have no authority over pandemic exposures. OSHA has said in every prior pandemic that this it is beyond their scope and under the scope of the department of Public Health. "Link: For additional information on very high and high exposure risk occupations, please refer to OSHA's Guidance on Preparing Workplaces for an Influenza Pandemic"
On page 6 of the opinion, when referring to the scope of authority provided in the OSHA Act, SCOTUS also stated:
"OSHA has never before imposed such a mandate. Nor has Congress. Indeed, although Congress has enacted significant legislation addressing the COVID–19 pandemic, it has declined to enact 2 NATIONAL FEDERATION OF INDEPENDENT BUSINESS v. OSHA Per Curium any measure similar to what OSHA has promulgated here."
It is very clear that OSHA's 1910.501 ETS is most likely to never be enforced or make it through the Emergency Temporary Standard process to become a permanent standard, as the process is intended to be used. This is because the exposure conditions at work are not just the same as outside work but actually there is a lower risk at work due to the limited and static number of people the employee interacts with there.
However, the 1910.502 Emergency Temporary Standard for health care workplaces was found to be within the scope of authority of the OSHA Act. In general, workplaces have no one assigned a task that will increase their exposure as part of their job. But the health care industry is created to serve sick people and have a reasonable expectation of increased exposure when compared to the general population or other workplaces.
Aside from the mandate of the vaccination, it is a good standard. Compare 1910.501 side by side to 1910.502 and you will see how a well thought out and protective standard should be written.
If you have any questions about the COVID-19 pandemic, or, if you think tracking vaccination status, such as tetanus for outdoor workers, would be useful for your workplace please don’t hesitate to contact us via this Link!
We have written several blogs about the pandemic going back to February 2020: