Effective today, OSHA is officially withdrawing the broad stroke COVID-19 Vaccination and Testing ETS that the SCOTUS reissued a stay on and sent back to the 6th Circuit a couple of weeks ago. In the decision from the SCOTUS, they noted that COVID-19 is not an occupational hazard, but rather it is a kind of universal risk that is no different from the day-to-day dangers that all face. Cleary, the Court took issue with OSHA’s approach to issuing the vaccine-or-test ETS for all employers with 100 or more employees without taking into account the occupation itself. However, the Court left open the argument that there are certain occupations that do have an actual increased occupational exposure to COVID-19. One of those, and probably the one that we can all agree on, is the Healthcare industry. In OSHA’s statement on withdrawing the ETS, they went on to mention that they are still pursuing a proposed rule for a permanent COVID-19 Healthcare Standard. The question is, will OSHA look to further their Emphasis Program on COVID-19 that was issued on July 7, 2021. In that, they mention targeted industries with increased occupational exposure to COVID-19. Why they didn’t use that as the basis for their ETS is confusing. The Healthcare industry was identified (see Table 1 below), as well as, 11 other industries (see Table 2 below). What will OSAH do for those 11 other industries, and will they work to pursue a proposed rule for them, will they try to slide them into the Healthcare rule, or possibly issue a new ETS targeting those 11 industries they identified in July? We will have to keep an eye on that.
