Status of OSHA Emergency Temporary Standard, Application to Truck Drivers, and State-Specific Action

Status of Court Action. The United States Supreme Court has not yet issued any order regarding stay of the OSHA Emergency Temporary Standard (ETS). As reported on Monday, January 10, 2022, good faith compliance with the ETS is now required. Based upon argument before the Court on Friday, January 7, 2022, minimum practical steps to claim good faith include adoption of a policy (Leech Tishman’s conclusion is the policy (and required disclosures) must be published to employees), collection of data (including copies of vaccination cards) and preparation of the required roster, and requiring all employees who are not vaccinated to wear approved face coverings when present in the workplace or around other employees.

It was anticipated that the Court would enter an order, one way or the other, this past weekend. The speculation is that the delay is caused by the Court using the ETS litigation to determine a larger constitutional question. Based upon Friday’s argument, the Court may also be laboring under the assumption that nothing major needs to be done until February 9, 2022.  Whatever the reason, and despite the frustration and expense this causes (as well as the lack of test kits and the evidence the Omicron variant has the apparent ability to evade vaccination and boosters), as it now stands there is no stay and OSHA is intent on its enforcement. All employers with 100 or more employees are subject to citation (a fine of almost $14,000) if they have not implemented good faith efforts to be compliant. February 9, 2022 remains the deadline to commence testing.

OSHA Enforcement and Truckers. Other than statements of intent, Leech Tishman is unaware of OSHA efforts to ensure compliance. There has been no further clarification as to what OSHA considers “good faith compliance” beyond what was argued Friday. Nevertheless, there appears to be no hesitancy on OSHA’s part to proceed forward with the ETS. Today, January 12, 2022, OSHA issued guidance indicating that the ETS is applicable to truck drivers unless the employer can show the driver is “rarely” inside buildings and does not share the truck cab with any other worker.

State-Specific Emergency Standards. With certain exceptions, state workplace safety agencies seem to be taking a “wait and see” approach to enforcement of the ETS. Both Illinois and Minnesota have announced that they will implement and enforce the federal rule. Iowa has stated it will not implement a shot or test mandate regardless of the Supreme Court’s decision. North and South Carolina have stated they will await the outcome of the Supreme Court’s decision. Michigan, Nevada and Oregon have stated that they are preparing to implement the ETS but will monitor the outcome of litigations. Arizona and California have not made any comment as of publication of this alert.

Employers with questions related to COVID-19 and the workplace following the ETS, or other questions related to employment law, should contact Philip Toomey.

Philip Toomey is Chair of the firm’s national Employment & Labor Practice Group, where he also leads the Public Sector Employment Group. He can be reached at 424.738.4400 or ptoomey@leechtishman.com.

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