Not unexpectedly, the federal Occupational Safety and Health Administration (OSHA) officially has withdrawn the Emergency Temporary Standard (ETS) calling for mandatory COVID-19 vaccination or testing by employers of over 100 employees. The agency did so in response to the recent U.S. Supreme Court decision which effectively killed any chance for OSHA to enforce the ETS. OSHA says it will begin steps for formal rulemaking needed to enforce a permanent version of the ETS.
Even though the ETS is out of the picture for now, OSHA can still enforce reasonable measures for workplace safety during the pandemic. Long before the ETS was issued, OSHA had published extensive guidance for reasonable measures to protect against the virus in the workplace. Much of the OSHA guidance tracks Centers for Disease Control and Prevention (CDC) recommendations for masking, sanitization and social distancing at work. Although not in the form of an actual OSHA Safety Standard, the guidance can be relied on by OSHA when deciding whether to issue citations under the OSHA General Duty Clause. General Duty Clause citations can be issued where OSHA feels an employer has ignored workplace hazards that are well-recognized in the industry. Employers are well-advised to be familiar with the OSHA COVID-19 Guidelines found on its website.