Appeals Court Rejects Effort to Compel OSHA to Retain Healthcare ETS

On Friday, an Appellate Court rejected the UNIONS' effort, including the National Nurses, United, to compel the Occupational Safety and Health Administration (OSHA) to retain the Healthcare Emergency Temporary Standard (ETS).

OSHA issues emergency temporary standard to protect workers from coronavirus

The U.S. Department of Labor's Occupational Safety and Health Administration today announced a new emergency temporary standard [ETS] to protect more than 84 million workers from the spread of the coronavirus on the job. The ETS shifts payment responsibility for testing to workers which will impact risk costs for employers and may conflict with some Workers’ Compensation laws and the efficient administration of benefits.

OSHA Emergency Temporary COVID Standard Upheld by Federal Court of Appeals

The Sixth Circuit Court of Appeals reversed the Fifth Circuit Court of Appeals’ decision staying the Biden Administration’s Emergency Temporary Standard (ETS) of the Occupational Safety and Health Administration (OSHA). The split decision (2-1) of the three-judge panel upholds vaccine mandates against COVID infections for places of employment having 100 or more employees. 

An appeal to the US Supreme court is anticipated.

Summary

“The COVID-19 pandemic has wreaked havoc across America, leading to the loss of over 800,000 lives, shutting down workplaces and jobs across the country, and threatening our economy. Throughout, American employees have been trying to survive financially and hoping to find a way to return to their jobs. Despite access to vaccines and better testing, however, the virus rages on, mutating into different variants, and posing new risks. Recognizing that the “old normal” is not going to return, employers and employees have sought new models for a workplace that will protect the safety and health of employees who earn their living there. In need of guidance on how to protect their employees from COVID-19 transmission while reopening business, employers turned to the Occupational Safety and Health Administration (OSHA or the Agency), the federal agency tasked with assuring a safe and healthful workplace. On November 5, 2021, OSHA issued an Emergency Temporary Standard (ETS or the standard) to protect the health of employees by mitigating spread of this historically unprecedented virus in the workplace. The ETS requires that employees be vaccinated or wear a protective face covering and take weekly tests but allows employers to choose the policy implementing those requirements that is best suited to their workplace. The next day, the U.S. Court of Appeals for the Fifth Circuit stayed the ETS pending judicial review, and it renewed that decision in an opinion issued on November 12. Under 28 U.S.C. § 2112(a)(3), petitions challenging the ETS—filed in Circuits across the nation—were consolidated into this court. Pursuant to our authority under 28 U.S.C. § 2112(a)(4), we DISSOLVE the stay issued by the Fifth Circuit…”

The Emergency Temporary Standard

“The ETS does not require anyone to be vaccinated. Rather, the ETS allows covered employers—employers with 100 or more employees—to determine for themselves how best to minimize the risk of contracting COVID-19 in their workplaces….. Employers have the option to require unvaccinated workers to wear a mask on the job and test for COVID-19 weekly…. They can also require those workers to do their jobs exclusively from home, and workers who work exclusively outdoors are exempt…. The employer—not OSHA—can require that its workers get vaccinated, something that countless employers across the country have already done…. Employers must also confirm their employees' vaccination status and keep records of that status…. Consistent with other OSHA standard penalties, employers who fail to follow the standard may be fined penalties up to $13,653 for each violation and up to $136,532 for each willful violation. 29 C.F.R. § 1903.15(d). “

 Holding

1. OSHA has demonstrated the pervasive danger that COVID-19 poses to workers􀂲unvaccinated workers in particular􀂲in their workplaces

2. OSHA’s issuance of the ETS is not a transformative expansion of its regulatory power as OSHA has regulated workplace health and safety, including diseases, for decades. 

3. There is little likelihood of success for the challenges against OSHA’s bases for issuing the ETS.

4. The factors regarding irreparable injury weigh in favor of the Government and the public interest.  

In re: MCP No. 165, Occupational Safety & Health Admin. Rule on COVID-19 Vaccination and Testing, 86 Fed. Reg. 61402, Nos. 21-7000, et al., 5thCir, 2021. Decided December 17, 2021.

Appeals to US Supreme Court

-BST Holding, LLC filed an Emergency Application for Relief "Whether OSHA’s private-employer mandate violates the Religious Freedom Restoration Act or the First Amendment"

-IN RE: MCP NO. 165, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, INTERIM FINAL RULE: COVID-19 VACCINATION AND TESTING; EMERGENCY TEMPORARY STANDARD 86 FED. REG. 61402, ISSUED ON NOVEMBER 4, 2021

US Supreme Court to hear oral argument on 7 Jan 2022.

Recommended Citation: Gelman, Jon L.,  OSHA Temporary Emergency COVID Standard Upheld by Federal Court of Appeals, Workers' Compensation Blog (Dec. 17, 2021), https://workers-compensation.blogspot.com/2021/12/osha-temporary-emergency-covid-standard.html

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Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (Thomson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (Thomson-Reuters). For over 5 decades the Law Offices of Jon L Gelman  1.973.696.7900  jon@gelmans.com  have been representing injured workers and their families who have suffered occupational accidents and illnesses.

Blog: Workers ' Compensation

Twitter: jongelman

LinkedIn: JonGelman

LinkedIn Group: Injured Workers Law & Advocacy Group

Author: "Workers' Compensation Law" Thomson-Reuters

Updated 12/23/2021

Annual respirator fit-testing again required by OSHA

On July 7, 2021, the US Occupational Safety and Health Administration issues an Updated Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19) regarding enforcement discretion for periodic respiratory protection equipment shortages and associated constraints (i.e., fit-testing supplies and provision of related services) during the COVID-19 pandemic. 

Chairwoman Adams Opening Statement at Workforce Protections Subcommittee Hearing on Protecting Workers from COVID-19

Subcommittee on Workforce Protections Chairwoman Alma Adams (NC-12) delivered the following opening statement at today’s hearing entitled, “Examining the Federal Government’s Actions to Protect Workers from COVID-19.”

OSHA: ETS and COVID-19 - CRS issues an updated report April 2021

The Occupational Safety and Health Administration (OSHA) does not currently have a specific standard that protects health care or other workers from airborne or aerosol transmission of disease or diseases transmitted by airborne droplets. 

OSHA Finally Acts: Is It Too Little and Too Late?

Today OSHA released a COVID Emergency Temporary Standard [ETS] for health care workers and guidance for workers, not in a health care setting. OSHA’s action comes about a year and a half after the COVID-19 Pandemic began and when over half of the nation’s workforce has already the protection of received an initial vaccination.

Reducing Worker Exposure to ETS

What better time than during the American Cancer Society’s  annual Great American Smokeout, to highlight the benefit of  comprehensive smoke-free workplaces  on the health of workers.   Furnishing a smoke-free work environment has been shown to both reduce exposure to environmental tobacco smoke (ETS) among non-smokers, and also to decrease smoking among employees.  In Massachusetts, recent surveillance findings suggest that one approach to reaching that goal – comprehensive state laws mandating smoke-free workplaces – had a measurable positive impact.  The U.S. Surgeon General reports that there is no safe level of exposure to ETS, also known as secondhand smoke (USDHHS 2006).  Workers can be exposed to ETS in their workplaces if co-workers or members of the public are permitted to smoke.   ETS causes lung cancer and heart disease, and is also linked to respiratory diseases. Not only does ETS worsen asthma but it also increases the likelihood of developing asthma. In 2004, Massachusetts became the third state behind Delaware and New York to pass a comprehensive law, banning smoking in bars, restaurants and non-hospitality workplaces.  The Massachusetts Smoke-Free Workplace Law (M.G.L. Ch. 270, § 22) requires all enclosed workplaces with one or more employees to be smoke-free. We recently presented findings from the Behavioral Risk Factor Surveillance System demonstrating that...

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OSHA issues updated guidance on protecting unvaccinated and other at-risk workers from the coronavirus

U.S. Department of Labor's Occupational Safety and Health Administration today issued updated guidance to help employers protect workers from the coronavirus. The updated guidance reflects developments in science and data, including the Centers for Disease Control and Prevention's updated COVID-19 guidance issued July 27.

Central New Jersey facility to pay $273K, take corrective actions to resolve COVID-related respirator violations

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Court Rejects Roundup Settlement

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Death by Overwork

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Dental Professionals at Increased Risk for COVID-19

Dental professionals for increased risk of COVID-19 infection a newly published study reports.

NJ Announces Intention to End COVID-19 Public Health Emergency

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VA To Expand Medical Care for Burn Pit Claims

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Remote Work No Longer Mandated in NJ

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NJ Governor Murphy Signs Legislation and Executive Order Ending COVID-19 Public Health Emergency

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Contractual Choice of Law Held Governing

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NJ Senate to Vote on Employment Bill

Workers in NJ who are injured at work do not have protected job status. Typically, employers will fill their positions with a replacement just because they are “absent" from work.

The NJ Senate will vote vote on S2998 on June 3, 2021. This bill addressed that issue and requires any employer who has 50 or more employees to provide a hiring preference to an employee who was injured in a work- related injury, has reached maximum medical improvement, and cannot return to the employee’s former position with that employer. The employer is only required to provide the hiring preference if the employee can perform the essential duties of an existing, unfilled position.

The bill does not require an employer to create a new position for the injured employee, nor does it require the employer to remove another employee from an existing but filled position to accommodate the injured employee.

The identical bill was approved by the NJ Assembly 76-0 on May 20. 2021. The NJ Senate SLA Committee reported the bill out favorably on 1/29/20 3-0.

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Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (Thomson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (Thomson-Reuters). For over 4 decades the Law Offices of Jon L Gelman  1.973.696.7900  jon@gelmans.com have been representing injured workers and their families who have suffered occupational accidents and illnesses.

CMS Webinar on the PAID Act

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