Status of the OSHA COVID-19 Emergency Temporary Standard

Many clients have reached out this morning, January 10, 2022, regarding status of the OSHA COVID-19 Emergency Temporary Standard (ETS). Over the weekend, and based solely upon comments made by the Justices during argument, mainstream media has read the tea leaves to either declare the ETS “finished” or “fully enforceable.” It was hoped that since good faith compliance with all terms of the ETS (except testing) must be in place by close of business today to avoid imposition of significant fines, the Supreme Court would have issued its ruling over the weekend. However, as of the posting of this Alert, the Court has not spoken, one way or the other. Unless the Supreme Court issues a ruling in the next few hours, here is Leech Tishman’s best read of the current situation.

1. Required Compliance. By close of business today, employers with 100 or more employees must have made minimal good faith efforts to be in compliance with all requirements of the ETS.
2. What are Minimal Good Faith Efforts? According to the government’s argument on Friday, minimum “practical good faith efforts” include: (a) adopting a policy related to mandatory vaccination or testing; (b) ascertaining vaccination status of all employees; and (c) requiring face coverings for all employees who remain unvaccinated. That position appears to require both adoption and publication to employees of the policy (together with the required criminal penalties and protected rights disclosure sheets), creation of a roster, and assembly of vaccination documentation.
3. What are Individual States Doing? What was clear in Friday’s argument was action by state-specific OSHA agencies will be permitted. So “even if” the ETS is stayed, states like Minnesota which have adopted verbatim the ETS will be permitted to enforce their rules. Minnesota, in particular, requires minimum good faith efforts at compliance by close of business today.
4. If the ETS is Stayed or Vacated, will federal OSHA Proceed with a Broader Pandemic Workplace Standard? Yes. OSHA is moving forward on a permanent workplace rule. That rule must be published by May 5, 2022.

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.

Leech Tishman’s Facebook Page: https://www.facebook.com/leechtishman