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January 26, 2022
By Anthony Cammarata Jr.

The Occupational Safety and Health Administration (OSHA) is withdrawing its emergency temporary standard (ETS) that would have required large businesses to ensure employees are vaccinated against the coronavirus or undergo weekly COVID-19 testing no later than February 9th. OSHA’s decision to withdraw the mandate comes after the United States Supreme Court, in a 6-3 decision made on January 13th, blocked its implementation.

However, the agency announced today that it would continue to work on imposing the vaccination requirement through the regular rulemaking process, indicating that the ETS acts as a proposal for a permanent standard. The proposed permanent rule stands separate and apart from the litigation withdrawn today and requires the agency to undergo a formal administrative process with a notice-and-comment period. This means that OSHA will narrow the scope of the standard, likely focusing in on what it deems to be high-risk industries.

For now, employers need to keep in mind that OSHA will continue to inspect employer worksites for COVID-19 safety under the agency’s current standards, including the COVID-19 National Emphasis Program, which targets high-risk industries, as well as housekeeping and respiratory standards and the Occupational Safety and Health Act’s general duty clause. Under the general duty clause, all employers must provide a work environment that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm.”

As these rules and regulations continue to develop, it is important for employers to plan and apply appropriate policies and procedures to address the changing landscape. Employers should pay attention to the COVID-19 guidance released by OSHA, much of which incorporates guidelines set forth by the U.S. Centers for Disease Control and Prevention. Employers should also stay up to date on individual state regulations being implemented, because OSHA allows states to develop their own workplace health and safety plans, as long as those plans are “at least as effective” as the federal program. The attorneys at Flint, Connolly & Walker, LLP possess the necessary experience to assist employers in implementing policies and procedures that work best for their respective business models and corporate cultures.

Anthony Cammarata Jr. is an attorney with Flint, Connolly & Walker, LLP currently assisting clients in various corporate and other civil matters. He is experienced in a range of legal issues affecting business owners and employers, including the specific impacts of the COVID-19 pandemic on the areas of labor and employment law.