OSHA WITHDRAWS LARGE EMPLOYER ETS: BUT WAIT, THERE IS MORE COMING . . .

by | Jan 25, 2022 | COVID-19, Employer Rights, Employment Law, The North Dakota Employer's Blog

To our dedicated followers, if you are keeping score, we last reported that the U.S. Supreme Court temporarily blocked the Emergency Temporary Standard dictating larger employers implement a vaccine or testing mandate in its decision on January 13, 2022. (Supreme Court Blocks OSHA ETS But Upholds CMS Vaccine Mandate).  OSHA announced today that it is withdrawing the Emergency Temporary Standard (or “ETS”) that was stayed by the Supreme Court.  The agency announced, however, that it is not,  withdrawing the Emergency Temporary Standard as a proposed rule.

Huh?

While this is confusing, remember that an Emergency Temporary Standard from OSHA is only enforceable for six months.  That, plus the fact that as worded, the Supreme Court seemed unlikely to ever approve the Large Employer Mandate as written, OSHA announced in a statement on its website that “The agency is prioritizing its resources” to focus on developing a permanent COVID-19 standard.

What does this mean?  Well, the Large Employer COVID Vaccine standard is not dead yet, although it is unlikely to be reincarnated in its current form.  Even if no Large Employer permanent standard ultimately materialized from OSHA, North Dakota employers are reminded that OSHA has indicated its plan to “vigorously enforce” existing workplace rules to ensure worker safety, including preventing the spread of COVID-19.  The agency indicated it intends to use its powers under existing rules and the “General Duty” clause, a catch-all requirement that requires employers to provide a workplace free of hazards even in the absence of specific standards, to increase workplace safety related to COVID-19.

For now, while awaiting possibly new rules, employers are advised to continue protocols to limit the transmission of COVID-19 and strictly follow OSHA recordkeeping and general requirements.  For more information, contact your Vogel Law Firm Employment & Labor Law group attorney.

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