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UPDATE: OSHA Covid ETS

December 6th, 2021

OSHA recently extended the deadline for public comment on its COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS). The new deadline of January 19, 2022 was reportedly set to provide more time for citizen input.

The ETS is a highly controversial rule. OSHA’s ETS issued on November 5th, reportedly seeks to protect workers from the spread of coronavirus in the workplace and covers employers with 100 or more employees. Covered employers must develop, implement, and enforce a mandatory COVID-19 vaccination policy, or adopt a policy requiring employees to either get vaccinated or undergo regular COVID-19 testing and wear a face covering at work. Soon after it’s rollout, the ETS was challenged on legal grounds. A recent halt in the effective date from subsequent court decisions and OSHA’s response effectively halted the timeline for business and industry to implement ETS requirements.

Public discourse concerning the many valid personal, legal, constitutional, and professional arguments on both sides of the ETS debate runs rampant on social media. HRP explored several intriguing issues, questions, and concerns surrounding the potential effects of the ETS in its November 22nd podcast. That discussion clearly identified the complexity of the matter at hand. If you missed that podcast you can access it here.

While the future of OSHA’s ETS remains unclear, it is evident that the rule makers did not fully consider the variability and intricacies of business operations, or the burden the ETS places on employers to implement and enforce an ETS compliance program. That task has been left up to the covered employers to figure out. The temporary Stay provides a well needed “time-out” for employers and OSHA to digest the ETS requirements, evolving state regulations, and the impacts to business.

A reputable labor attorney opined that OSHA’s “Grave Danger” designation behind the ETS rule making is ambiguously defined (and yet to be supported by scientific data for coronavirus hazards in the workplace), but certainly there are grave implications for employers and employees alike should the ETS be adopted. Thus, as the ETS battle wages on in the courts, savvy employers know that adopting a “wait-and-see” approach can be disastrous to an organization should the ETS survive legal challenges. Business leaders must stay informed and use this time to formulate a sound strategy of compliance should the ETS become effective.

At a minimum, employers need to assess the vaccination status of the workforce to formulate a strategy for intended compliance. Only then can employers begin to tackle policies that grapple with the wide-ranging impacts to labor, production, customers/clients, finances, human resources, safety resources, and other business resources.

Moreover, employers need not wait on a lengthy legal process to cope with potential coronavirus hazards in the workplace. With current guidance from CDC and others, wise employers have already developed and implemented Pandemic Preparedness and Response Plans that are tailored to their unique business operations and workplace risk. Such plans are “living” documents regularly updated in response to new information.  The plans also allow business to review and adopt evolving smart physical controls, administrative controls, engineering controls, and technological advances that exist to reduce the risk posed by infectious disease in the workplace.

Where the future of the ETS is unclear, what remains clear is that HRP continues to be of service to our stakeholders as they continue to navigate the intricacies of this pandemic and the resulting policies, best practices and standards.

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James Elliott, CHMM, CSP, FL Regional Office Manager at HRP Associates, Inc.