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December 02, 2021
OSHA extends comment period for COVID-19 ETS

The Occupational Safety and Health Administration (OSHA) has extended the comment period for its November 5 COVID-19 vaccination and testing emergency temporary standard (ETS). Written comments on any aspect of the ETS, which had been due December 6, now must be submitted by January 19, 2022, to the rulemaking Docket No. OSHA-2021-0007 at www.regulations.gov.

OSHA still is barred by federal courts from implementation or enforcement of the emergency rule. The ETS itself, which would compel employers with 100 or more employees to implement a program of COVID-19 vaccination or regular testing and face coverings to protect unvaccinated workers, is the subject of ongoing federal litigation. OSHA stated that the comment period for the rulemaking docket is separate from the litigation.

A three-judge panel of the U.S. Court of Appeals for the 5th Circuit in New Orleans issued an indefinite stay of the ETS on November 12. All lawsuits pertaining to the emergency rule then were consolidated and assigned to the 6th Circuit appeals court in Cincinnati.

On November 23, attorneys for the U.S. Department of Labor (DOL) asked the 6th Circuit appeals court to either lift the stay, allow OSHA to prepare compliance assistance material and train call center staff and inspectors, allow the rule’s face covering and testing requirements to take effect, or at least leave in place the federal preemption of state and local vaccine mandate bans, which would enable employers to conduct employee vaccination programs.

The ETS issued November 5 would require employers to implement a vaccination or testing program, determine the vaccination status of employees and maintain records of employees’ vaccination status, and remove infected workers from the workplace, only allowing them to return once they meet return-to-duty criteria.

A worker who is not fully vaccinated would have to be 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. The rule would not require employers to pay for COVID-19 testing but would require that employers provide paid time off for vaccination and recovery from vaccine side effects.

In issuing the indefinite stay, the judges of the 5th Circuit appeals court suggested that the petitioners’ challenge to the ETS is likely to succeed. The three-judge panel characterized the ETS as “overinclusive” because it applies across industries without regard to actual risks and “underinclusive” because it only applies to employers of 100 or more employees. They alleged that the government scoured federal statutes for a vaccine mandate authority and landed upon an OSHA ETS.

In its filing in the 6th Circuit appeals court, the Labor Department disputed the 5th Circuit’s conclusion that the petitioners would prevail. DOL attorneys also disputed the 5th Circuit’s interpretation of OSHA’s emergency standard-setting authority under the Occupational Safety and Health Act, as well as its conclusion that the agency’s action exceeded the federal government’s authority under the Constitution’s Commerce Clause.

In a litigation update, OSHA said it had suspended implementation and enforcement pending further developments in the litigation.

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