Q: Since the U.S. Supreme Court blocked OSHA’s COVID-19 vaccination-or-test emergency temporary standard (ETS) for employers with 100 or more employees, is the agency still looking to implement the standard?
A: For now, no. OSHA announced on Jan. 25 that it was withdrawing the ETS that would have required employers with 100 or more employees to mandate COVID-19 vaccines for their employees or subject them to weekly testing and mask wearing.
But there are some things to keep in mind – which are detailed below – according to law firm Shawe Rosenthal.
For example, healthcare employers need to remember there is a vaccine mandate in effect for those involved with Medicare and Medicaid programs, which the U.S. Supreme Court did allow while blocking the OSHA rule.
Another vax-or-test rule could be in the works
Q: Is OSHA working on a permanent vaccination-or-test standard for employers outside of health care?
A: Probably. In its announcement on the withdrawal of the COVID-19 vaccination-or-test ETS for employers with 100 or more employees, OSHA makes clear that it’s not withdrawing the ETS as a proposed rule.
Shawe Rosenthal says that means a version of the ETS could be proposed as a permanent standard at some point in the future.
The notice and comment period for the proposed rule closed on Jan. 19, and OSHA will likely review any comments it received, along with the restrictions imposed by the Supreme Court’s opinion.
New healthcare standard could include vax requirement
Q: Is OSHA working on a permanent standard to replace its COVID-19 healthcare ETS and could that standard have a vaccination-or-test requirement?
A: Yes, the agency is working on a permanent standard to replace the healthcare ETS it withdrew in December 2021.
OSHA says it’s focused on finalizing the permanent healthcare standard and promised to rely on the General Duty Clause and certain standards – such as the PPE and Respiratory Protection standards – to protect healthcare workers in the meantime.
Continued adherence to the terms of the healthcare ETS is the easiest way for healthcare employers to protect their employees and ensure compliance with OSHA, according to the agency.
Further, OSHA says the terms of the ETS are relevant in general duty cases since COVID-19 poses a hazard in the healthcare industry – a hazard with a feasible means of abatement.
“Thus, healthcare employers can expect OSHA to push continued compliance with the ETS, despite its withdrawal,” said Fiona Ong, an attorney with Shawe Rosenthal.
And while the original ETS didn’t require vaccination, a permanent standard quite possibly could incorporate a COVID-19 vaccine mandate.
Like the mandate for healthcare workers involved in Medicare/Medicaid, a permanent COVID-19 healthcare standard with a vaccination requirement would likely be specific enough to satisfy legal requirements to move forward.
