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ACEC News / Advocacy

February 1, 2022

OSHA Withdraws ETS, So Now What?

By Dan Hilton

Last week, the Small Business Administration’s Office of Advocacy hosted its monthly Labor/Safety Roundtable. One of the topics presented was employers’ continued responsibilities in the wake of the OSHA Emergency Temporary Standard (ETS) being withdrawn.

At the SBA Roundtable, a presentation was made on the responsibilities that employers are still required to maintain, such as having a written policy in place to provide employees a workplace free of recognized hazards. COVID-19 is legally classified as a recognized hazard by OSHA. Employers are allowed to require vaccine or testing in the workplace, but they must provide adequate religious and medical exemptions. The Department of Labor does not provide guidance on covering the costs of testing. However, if testing is an employer requirement for non-vaccinated employees the employer may be responsible for covering the costs of testing. Time spent on employer-required testing or vaccination during the regular day or shift is compensable.

Click here to view an outline of employers’ responsibilities.

Click here to view an example of a recent OSHA citation related to COVID-19 from a 300-employee manufacturing facility in the Midwest, dated January 14, 2022.  

As it has been reported, OSHA intends to refocus its efforts on a more narrow standard, but on a permanent basis, rather than temporary. The ETS was due to expire on May 5 and was viewed by the courts as being too great of an overreach, citing OSHA’s jurisdiction as being limited to the workplace, while COVID-19 is present in far more places than the workplace. While still being drafted, it is believed that OSHA is focusing on areas such as healthcare workers and industries such as high-volume retail, meatpacking and other indoor settings. That standard would involve a new rulemaking and a public comment period.

In announcing their intention to withdraw the ETS, OSHA noted that they were 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.” That was a procedural maneuver to further allow them to pursue additional action, as described above. The legal community believes that OSHA intends to keep the ETS as a proposed rule under OSHA’s rulemaking authority. OSHA could choose to modify the previously published ETS and may rely on the Supreme Court’s opinion in doing so. OSHA may also decide to incorporate ideas from the Supreme Court Justices such as an industry or workplace specific analysis.  Additionally, OSHA is also likely to review the comments submitted during the notice and comment period for direction with respect to a potential final ETS.

Dan Hilton is ACEC Director of Procurement Advocacy & International Affairs.

All comments to blog posts will be moderated by ACEC staff.

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