OSHA's Vaccination and Testing ETS May Be Dead, but OSHA Citations Are Not

Labor & Employment Workforce Watch
February 2022

On January 13, 2022, the United States Supreme Court sent a clear message to OSHA regarding its Emergency Temporary Standard for Vaccination and Testing (the “ETS”): the ETS will not be enforced during the pendency of the litigation, or ever. However, the Supreme Court’s opinion and OSHA’s subsequent withdrawal of the ETS, does not let employers off the hook regarding potential liability for COVID-19 health and safety hazards in the workplace. OSHA acted swiftly in issuing a statement that it will continue to “do everything in its existing authority to hold businesses accountable for protecting workers, including under the Covid-19 National Emphasis Program and General Duty Clause.”

OSHA further exhibited its intent on January 14, 2022—only one day after the Supreme Court issued its opinion—when it issued a hefty citation in the amount of $26,527 to an employer for failing to comply with both federal guidelines and its own COVID-19 policies. This latest OSHA action follows the agency hitting several employers in October 2021 with significant penalties, including: a $9,557 penalty against an employer for allowing workers to “congregate closely [ ] without face coverings”; a $38,620 penalty against a healthcare facility for failing to “ensure proper use of respiratory protection, conduct thorough hazard assessments, maintain social distancing and physical barriers, and determine employees’ vaccination status”; and a $23,406 penalty against an employer for allowing employees to work while displaying COVID-19 symptoms. There has been no shortage of OSHA citations since the start of the COVID-19 pandemic, with OSHA’s total initial COVID-19 penalties up to $4,034,288 as of Friday, February 11, 2022.

The ETS may be effectively dead (at least as an emergency temporary standard), but OSHA has made clear it will continue to ensure employers are taking appropriate measures to protect employees against the spread of COVID-19. Employers of all sizes should continue to follow current guidance, including OSHA’s general industry guidance, and take appropriate measures to protect their workforce. If an employer does not already have a COVID-19 policy in place, it should consider adopting (and following) a policy to ensure appropriate measures are being taken to protect employees in the workplace.