Update: OSHA’s COVID-19 Regulation Plans are in Flux

by Mike DeBlasi | February 11, 2022 10:20 am

The vaccine-or-test mandate for businesses has been withdrawn. So what happens now?

After the Supreme Court decision[1] on January 13, 2022 — which put OSHA’s vaccine-or-test mandate for businesses on indefinite hold — it wasn’t surprising to see the agency announce the official withdrawal[2] of the controversial Emergency Temporary Standard [3](ETS) on January 25, 2022.

This doesn’t mean that a vaccination-or-test rule is going away. OSHA is clear[4] that they are “not withdrawing the ETS as a proposed rule.” The ETS is now part of OSHA’s regular, slower, non-emergency rulemaking process[5]. This process can take several years to complete.

According to Section 6(c)(3) of the Occupational Safety and Health Act (OSH Act of 1970[6]), the ETS can serve as a proposed permanent rule “as published.” The OSH Act also says that the final rule must be a “logical outgrowth” of the proposed rule. This stipulation will make this a fascinating rulemaking process to watch.

The Supreme Court clearly labeled OSHA’s effort — to mandate a vaccination-or-testing rule for private businesses — as overreach. They said that the agency was attempting to regulate something that was not a “workplace hazard.” Given this ruling, the process of developing a permanent standard that will survive judicial scrutiny — while remaining a “logical outgrowth” of the original ETS — could take several different directions.

We expect that a new comment period will be announced soon. This input will help shape any rulemaking activity in the months ahead.

The CMS vaccination mandate remains in effect

On November 4, 2021, the Centers for Medicare Medicaid Services (CMS) issued an interim final rule[7] requiring COVID-19 vaccinations for workers in most health care settings. The rule applied to all hospitals and health systems participating in the Medicare and Medicaid programs. This mandate was allowed to stand during the same Supreme Court session[8] that paused the vaccination-or-test mandate for private businesses.

The court reasoned that “CMS has broad powers to condition providers and suppliers participating in CMS programs” and specific requirements may be necessary “to ensure the health and safety of individuals who are furnished services under [those] programs.”

The rule went into effect on November 5, 2021, and all eligible workers were expected to be fully vaccinated by January 4, 2022.

The ETS for healthcare has expired

The Emergency Temporary Standard for healthcare (Healthcare ETS[9]) expired on December 21, 2021. Like the ETS for businesses, the healthcare ETS is now part of the regular OSHA rulemaking process[5]. In its January 25, 2022 announcement[10] withdrawing the vaccine-or-test mandate for businesses, OSHA reiterated its priority to get the healthcare standard done. “The agency is prioritizing its resources to focus on finalizing a permanent COVID-19 Healthcare Standard,” the announcement said.

Federal contractor mandate

In September 2021, the White House issued an Executive Order[11] that directed all federal agencies to contractually require certain contractors and subcontractors to implement vaccine mandates and other workplace safety protocols. There was no testing alternative. The Executive Order claimed authority under the Federal Property and Administrative Services Act[12] (FPASA).

Court challenges in several district courts lead to preliminary injunctions in Kentucky, Georgia, Louisiana, Missouri, Florida, and Texas.

On January 5, 2022, a federal appeal to the Sixth Circuit (Commonwealth of Kentucky, et al. vs. Joseph R. Biden et al.[13]) upheld the injunction, saying that states and contractors had the standing to challenge the Executive Order and that the mandate exceeded executive power. Similar actions are underway in the Fifth, Eighth, and Eleventh Circuits. Decisions are expected over the next few months. Private agreements remain enforceable as long as the state or local jurisdiction doesn’t prohibit mandates.

What should employers do?

While there may be some relief for employers to know that enforcement of a federal vaccination-or-test mandate is on hold for the time being, the agency continues to reiterate its commitment to developing such a standard. We recommend that employers monitor all regulatory developments and emerging guidance to ensure their mitigation program is up to date. Please note that the Omicron variant comprises virtually all of the current Covid-related infections. The adverse effects of the Omicron variant are quite mild compared to earlier variations of the virus. Thus, the “emergent” nature of Covid-19 has largely dissipated.

Know that you are free to implement COVID-19 policies that work for you, your employees, customers, and vendors — as long as these policies comply with state and local regulations. You may need some attorney guidance to ensure compliance with COVID-19 rules in all the different jurisdictions where you operate a business or have employees.

As always, feel free to contact us if you have questions or concerns about any OSHA compliance issue.

About the Author: James Laboe[14]

  1. Supreme Court decision: https://www.supremecourt.gov/opinions/21pdf/21a244_hgci.pdf
  2. withdrawal: https://www.federalregister.gov/documents/2022/01/26/2022-01532/covid-19-vaccination-and-testing-emergency-temporary-standard
  3. Emergency Temporary Standard : https://www.osha.gov/coronavirus/ets2
  4. OSHA is clear: https://www.osha.gov/coronavirus/ets2/
  5. rulemaking process: https://www.osha.gov/sites/default/files/OSHA_FlowChart.pdf
  6. OSH Act of 1970: https://www.osha.gov/laws-regs/oshact/completeoshact
  7. interim final rule: https://www.cms.gov/files/document/cms-omnibus-covid-19-health-care-staff-vaccination-requirements-2021.pdf
  8. the same Supreme Court session: https://www.supremecourt.gov/opinions/21pdf/21a240_d18e.pdf
  9. Healthcare ETS: https://www.osha.gov/coronavirus/ets
  10. January 25, 2022 announcement: https://www.osha.gov/coronavirus/ets2
  11. Executive Order: https://www.presidency.ucsb.edu/documents/executive-order-14042-ensuring-adequate-covid-safety-protocols-for-federal-contractors
  12. Federal Property and Administrative Services Act: https://disposal.gsa.gov/s/act49
  13. Commonwealth of Kentucky, et al. vs. Joseph R. Biden et al.: https://www.opn.ca6.uscourts.gov/opinions.pdf/22a0002p-06.pdf
  14. James Laboe: https://orr-reno.com/our-people/james-f-laboe/

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