COVID-19, EHS Administration

OSHA’s COVID-19 Workplace Enforcement: What Happens Next

After the Supreme Court’s stay of the emergency temporary standard (ETS) regarding COVID-19 in January, the Occupational Safety and Health Administration (OSHA) is turning to the other options it has to continue regulating and enforcing COVID-related health and safety violations. In a recent webinar, Eric J. Conn and Lindsay A. DiSalvo of Conn Maciel Carey LLP spoke about OSHA’s options, the potential permanent rules that may stem from the ETS, and what employers should do to prepare to comply with what comes next.

Background

The Biden Administration and OSHA have used the court system to determine the proper way to enforce COVID-19 violations in the workplace. At the very beginning of his administration, President Biden reinvigorated the COVID-19 Task Force, and on day one, he drafted an executive order directing OSHA to issue a broad programmatic COVID emergency rule. This move was quite unprecedented, according to Conn, who said it was rare for OSHA to be front and center in an executive order.

On June 21, 2021, OSHA released its COVID-19 Healthcare ETS centered around the healthcare industry, which outlined more specific COVID-19 protocols and standards in healthcare settings. According to Conn, this rule was never challenged, and on December 27, 2021, OSHA released a statement saying it will work to issue a final standard that will protect healthcare workers from COVID-19 hazards and other infectious diseases.

The second and more controversial COVID-19 Vaccination and Testing ETS was released on November 5, 2021, following Biden’s release of his “Path Out of the Pandemic” Action Plan. This standard, which became widely known as the “Vaccine-or-Test” ETS, would have required employers with 100 or more employees to develop and implement a vaccination and testing policy that meant workers had to undergo weekly COVID-19 testing in order to come to work, or opt out by receiving a full dose of the COVID-19 vaccine, among other requirements.

Immediately after OSHA announced this new ETS, more than 34 legal challenges were filed in every U.S. Court of Appeals in the country. The 5th Circuit Court of Appeals issued a stay of the ETS until the cases were consolidated in the 6th Circuit, which ultimately lifted the stay until the case went to the Supreme Court. After hearing arguments, the Supreme Court reinstated the stay on January 13t, 2022 in a 6-3 decision, with the conservative majority arguing that OSHA did not have the power to handle a hazard that was not specific to the workplace without more explicit direction from Congress, who they said hold the authority to make such sweeping regulations.

Technically, the order is just a temporary stay of OSHA’s vaccine ETS pending merits review of legal challenges by the 6th Circuit. However, the Court’s conservative majority sent a strong signal it will strike the ETS down if it returns to the Supreme Court on merits, according to Conn.

Grounds for enforcement

Now that the Vaccine-or-Test ETS has been stayed by the Supreme Court, OSHA has limited options for enforcement. Currently, the COVID-19 National Emphasis Program (NEP) is still in effect, which targets employees  and establishments that are considered to be in high-hazard industries with higher amounts of exposure to the virus. The NEP also includes worker protections from retaliation by preventing retaliation where possible, distributing anti-retaliation information during inspections, and referring allegations of retaliation to the Whistleblower Protection Program. OSHA’s COVID-19 Workplace Guidance is also still in effect and the CDC continues to publish and update guidance for COVID-19.

However, according to Conn and DiSalvo, the main standard OSHA will now possibly use to enforce COVID-19 safety protocols is the General Duty Clause (GDC), which can be found in the OSH Act of 1970. The GDC states that each employer must provide a place of employment that is free from recognized hazards that are causing or likely to cause death or serious physical harm to employees. There have already been a few examples of this kind of enforcement, and U.S. Secretary of Labor Marty Walsh pointed to the GDC in a statement about the Supreme Court’s decision, saying, “Regardless of the ultimate outcome of these proceedings, OSHA will do everything in its existing authority to hold businesses accountable for protecting workers, including under the COVID-19 National Emphasis Program and General Duty Clause.”

For this kind of enforcement, OSHA would have to provide a feasible means of abatement, meaning OSHA must identify what the employer could have done to avoid the violation, and it has to show that a business was not taking steps to enforce the COVID policy that business already has in place, said Conn.

There is also the possibility that OSHA will make a permanent programmatic rule that is similar to both ETSs, according to DiSalvo. Both the healthcare ETS and the Vaccine-or-Test ETS now serve as proposed rules for a permanent rulemaking process, and OSHA has stated that it plans to proceed with the rulemaking process within the next six to nine months. If a permanent rule is made, it will focus on a final rule for healthcare as the priority, but it will also proceed on the Vaccine-or-Test rule as well, said Conn and DiSalvo.

To survive scrutiny, Conn and DiSalvo said, a permanent rule would have to have a narrower application, meaning it would apply just to high hazard industries such as those listed in the NEP, and a different scope, meaning it wouldn’t be a “vaccination” rule, but a “programmatic” ETS like previously issued healthcare ETS with some vaccination elements. Additionally, OSHA has collected comments on both of the ETSs, so they can proceed towards a final rule considering those comments.

New CDC guidance

On February 25, 2022, the CDC published new guidelines for masking and social distancing recommendations. The CDC is now using a system called the COVID Community Level Rating, which is based on county data and is updated weekly. The rating is based on three factors:

  • New cases per capita
  • New COVID-related hospitalizations
  • Percent of area hospital beds occupied by COVID-19 patients

The system has three different ratings—low, medium, and high—which all have different qualifications and guidance that build on top of each other. If the county rating is low, people should focus on getting tested if they have symptoms and staying up to date with COVID-19 vaccines. If the rating is medium, they should take those same steps, and if a person is at high risk for severe illness, they should speak with their healthcare provider about whether they need to wear a mask and take other precautions. Lastly, if the rating is high, they should take all of the previous steps and also wear a mask indoors in public. The threshold for “high” is now 200 cases per 100,000 people. It used to be 50 per 100,000, but the CDC has since raised the threshold since hospitalizations are going down due to higher rates of vaccination, said Conn and DiSalvo.

Essentially, the new guidance minimizes the circumstances where wearing masks would be required. Some states and localities still have mask mandates, but where those do not exist and the CDC deems the community low or medium risk, then no masks will be required in public. It is likely that OSHA will update its guidance to reflect the CDC’s update, said DiSalvo, since OSHA relies on CDC guidance when making standards.

For employers

According to Conn, the only rule that will most likely survive through all litigation and policy changes is that employees who have a confirmed positive case of COVID-19 must be removed from the workplace and quarantined, and this is most likely where enforcement would occur. In terms of masking, if there is no state or local mask mandate, and the CDC has designated your county as “low” or “medium,” there is no mask requirement for your workforce.

Employers should check the CDC’s COVID Community Level Rating weekly, and remain flexible if there is a need to return to masking. Although distancing is not explicitly referenced, it may be reasonable under OSHA’s General Duty Clause to treat masks and distancing the same under the CDC’s new guidance, said Conn.

The CDC chart includes safety measures like vaccination, testing, and “other precautions” or “additional precautions” for high-risk people in medium rating areas and everyone in high rating areas. Conn said that “other precautions” could include any of the COVID protocols from the last two years, including distancing, barriers, ventilation systems, and many others, so employers should be prepared to comply with those as well.

Both Conn and DiSalvo ultimately said that with the statement from the Department of Labor, the previous examples of enforcement under the GDC, and with the new CDC guidance updates, OSHA will have a solid blueprint for reasonable enforcement.  

For more details, the full-length free webinar can be found here.