Labor Secretary Marty Walsh headshot

Labor Secretary Marty Walsh.

The Department of Labor’s Occupational Safety and Health Administration says that it is suspending enforcement of its COVID-19 vaccination and testing emergency temporary standard after a court ordered that the agency “take no steps to implement or enforce” the standard “until further court order.”

“While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation,” the agency said in a brief statement on it website.

The U.S. Court of Appeals for the 5th Circuit granted a motion to stay the standard on Nov. 12, OSHA noted.

After President Biden in September asked OSHA to develop a vaccine-or-test mandate, the standard was announced Nov. 4 and published in the Federal Register on Nov. 5.

Under the standard, U.S. companies employing 100 or more workers are required to develop, implement and enforce a mandatory COVID-19 vaccination policy, unless they adopt a policy requiring employees to choose to either be vaccinated or undergo regular COVID-19 testing and wear a face covering at work.

“Businesses that don’t comply may face significant OSHA fines,” the Labor Department said earlier this month. Employers found to be non-compliant could face a $14,000 penalty for a single citation. That penalty will jump to $140,000 for “willful penalties.”

In announcing the standard, OSHA said it could become permanent and ultimately could include smaller employers. The agency is accepting comments about the prospect through Dec. 6.

When the standard was introduced, the agency said that employers would need to comply with most of its requirements within 30 days of publication and with testing requirements within 60 days of publication. Senior administration officials said that employers would need to ensure that their employees received their final vaccination doses by Jan. 4, with at least weekly testing required for unvaccinated employees after that. Employers were to develop policies by Dec. 6, however.

The COVID-19 vaccination and testing standard has faced several legal challenges since it was announced, however. As of Nov. 12, at least 27 states had challenged its legality, according to Tara Clayton, senior vice president of Marsh Senior Care Practice, who spoke to Argentum members on Tuesday. Petitions also had been filed by private litigants and business groups. As of Nov 12, lawsuits and petitions were pending in all but one of the U.S. circuit courts.

The challenges to the OSHA COVID-19 standard revolve around arguments that it violates the U.S. Constitution or exceeds OSHA’s statutory authority, or that OSHA did not follow the proper rulemaking process, or that workplace risks do not justify the imposition of the standard, or that OSHA cannot justify a “grave danger” by implementing the emergency temporary standard two years into the pandemic, Clayton said.

Due to the different circuits and multiple districts involved in the litigation, the legal actions will be consolidated and heard by one circuit court that was chosen in a lottery. A federal judicial panel on Tuesday assigned the combined caseload to the Court of Appeals for the 6th Circuit in Cincinnati, according to the New York Times. It is anticipated that the case ultimately could go to the U.S. Supreme Court for a decision, Clayton said, adding that a ruling could take several months to more than a year.

Details of COVID-19 vaccination and testing emergency temporary standard

At the time the COVID-19 vaccination and testing emergency temporary standard was announced, the Labor Department said that it would cover two-thirds of the nation’s private-sector workforce. In the 26 states and two territories with OSHA state plans, the standard also will cover public sector workers employed by state and local governments, including educators and school staff.

As written, the emergency temporary standard requires employers to:

  • Determine the vaccination status of each employee, obtain acceptable proof of vaccination status from vaccinated employees and maintain records and a roster of each employee’s vaccination status.
  • Require employees to provide prompt notice when they test positive for COVID-19 or receive a COVID-19 diagnosis. Employers then must remove the employee from the workplace, regardless of vaccination status; employers must not allow them to return to work until they meet required criteria.
  • Ensure that each worker who is not fully vaccinated is tested for COVID-19 at least weekly (if the worker is in the workplace at least once a week) or within 7 days before returning to work (if the worker is away from the workplace for a week or longer).
  • Ensure that, in most circumstances, each employee who has not been fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes.

The standard does not require employers to pay for testing, although employers may be required to pay for testing to comply with other laws, regulations, collective bargaining agreements, or other collectively negotiated agreements, the Labor Department said when announcing it. Employers also are not required to pay for face coverings under the standard.

OSHA COVID-19 healthcare emergency temporary standard remains in effect

OSHA’s COVID-19 healthcare emergency temporary standard, which went into effect June 21, remains in effect. It applies to healthcare settings where suspected or confirmed individuals with COVID-19 are treated, including assisted living communities, life plan / continuing care retirement communities, nursing homes, skilled nursing facilities, and settings where home healthcare and hospice care are provided.

The standard requires operators to conduct hazard assessments and have written plans to mitigate the spread of the coronavirus. It also requires healthcare employers to provide some employees with N95 respirators and other personal protective equipment. Additionally, it includes social distancing, employee screening, and cleaning and disinfecting protocols.

Stand-alone independent living communities that do not provide COVID-19-related healthcare to residents are not included in these workplace safety rules; such settings are covered under the OSHA COVID-19 vaccination and testing emergency temporary standard.

Although the healthcare standard is set to expire on or before Dec. 21, it could be changed or become permanent, legal experts said Tuesday. As of Tuesday, there were no legal challenges to this standard. See the OSHA website for additional information.

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