OSHA has officially withdrawn its COVID-19 vaccination and testing emergency temporary standard (ETS), 29 C.F.R. § 1910.501, per a notice in the January 26 Federal Register. 87 Fed. Reg. 3928 (Jan. 26, 2022). As explained in our prior alert, this action resulted from the Supreme Court’s decision issuing a stay of the ETS, National Federation of Independent Business v. OSHA (Jan. 13, 2022).
Vaccination & Testing ETS To Serve As Proposed Rule
Of note, the Federal Register notice says that the ETS will serve as a proposed rule for a permanent standard:
Although OSHA is withdrawing the Vaccination and Testing ETS as an enforceable emergency temporary standard, OSHA is not withdrawing the ETS to the extent that it serves as a proposed rule under section 6(c)(3) of the Act, and this action does not affect the ETS’s status as a proposal under section 6(b) of the Act or otherwise affect the status of the notice-and-comment rulemaking commenced by the Vaccination and Testing ETS. See 29 U.S.C. 655(c)(3).
Similarly, OSHA said on December 27, 2021, that it is withdrawing most provisions of its healthcare ETS, 29 C.F.R. § 1910.502, et seq., and that the healthcare ETS will serve as the proposal for a permanent standard:
OSHA announces today that it intends to continue to work expeditiously to issue a final standard that will protect healthcare workers from COVID-19 hazards, and will do so as it also considers its broader infectious disease rulemaking. However, given that OSHA anticipates a final rule cannot be completed in a timeframe approaching the one contemplated by the OSH Act, OSHA also announces today that it is withdrawing the non-recordkeeping portions of the healthcare ETS.
Potential Scope of a Permanent Standard
So where does OSHA plan to go with a permanent standard? OSHA is unlikely to require vaccination, in light of NFIB v. OSHA. One exception may be for healthcare workers, in light of the Supreme Court’s decision the same day staying lower court injunctions against enforcement of the Centers for Medicare and Medicaid Services (CMS) vaccination requirement for healthcare workers in Biden v. Missouri (Jan. 13, 2022). However, OSHA has developed many other ideas about how to control infectious diseases from its two ETSs.
OSHA is also likely to respond to the following comment from the per curiam opinion in NFIB v. OSHA suggesting that a narrower standard might survive judicial scrutiny:
That is not to say OSHA lacks authority to regulate occupation-specific risks related to COVID–19. Where the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are plainly permissible. We do not doubt, for example, that OSHA could regulate researchers who work with the COVID–19 virus. So too could OSHA regulate risks associated with working in particularly crowded or cramped environments.
The Regulatory Information Service Center’s Fall 2021 Regulatory Agenda, 87 Fed. Reg. 5002, 5128 (Jan. 31, 2022) summarizes OSHA’s plan to issue an infectious diseases standard of limited scope, building upon spadework during the Obama Administration:
OSHA will propose an Infectious Diseases rulemaking to protect employees in healthcare and other high risk environments from exposure to and transmission of persistent and new infectious diseases, ranging from ancient scourges such as tuberculosis to newer threats such as Severe Acute Respiratory Syndrome (SARS), the 2019 Novel Coronavirus (COVID–19), and other diseases.
(An electronic version of this entry appeared on the regulations.gov website in December, so the entry predates the two Supreme Court decisions.)
The regulations.gov website entry provides more details about the workplaces to which OSHA is considering application of such a standard:
Health care workers and workers in related occupations, or who are exposed in other high-risk environments, are at increased risk of contracting TB, SARS, Methicillin-Resistant Staphylococcus Aureus (MRSA), COVID–19, and other infectious diseases that can be transmitted through a variety of exposure routes. OSHA is examining regulatory alternatives for control measures to protect employees from infectious disease exposures to pathogens that can cause significant disease. Workplaces where such control measures might be necessary include: Health care, emergency response, correctional facilities, homeless shelters, drug treatment programs, and other occupational settings where employees can be at increased risk of exposure to potentially infectious people. A standard could also apply to laboratories, which handle materials that may be a source of pathogens, and to pathologists, coroners’ offices, medical examiners, and mortuaries.
The notice indicates that the Obama Administration completed a Small Business Regulatory Enforcement Fairness Act (SBREFA) review for an infectious disease standard in 2014.
What Happens Next
The next step listed in the Regulatory Agenda is issuance of a proposed rule, projected for April 2022. It is likely that OSHA will carry over some of the provisions from its two COVID-19 ETSs to this proposed rule.
Rulemaking for a permanent infectious diseases standard could take years. In the meantime, as described in our prior alert, employers should expect updated guidance from OSHA and an increased emphasis by OSHA on enforcement under the General Duty Clause and OSHA’s permanent standards as a means of enforcing employee protections from COVID-19.
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