ANALYSIS & COMMENTARY
In January 2022, the U.S. Supreme Court effectively struck down President Joe Biden’s COVID-19 vaccine-or-test mandate, which was to be enforced by the Occupational Safety and Health Administration (OSHA). In the wake of the High Court’s decision, OSHA may retreat somewhat from the headlines, but you can still expect the agency to exercise a major impact on how America’s employers manage their workforces this year.
While the Supreme Court’s ruling only dealt directly with lower appeals court injunctions, in order to maintain the stay blocking implementation, the six majority justices have found that those suing the government were likely to prevail on the merits of their case against the OSHA emergency temporary standard (ETS).
The 6 to 3 ruling may not have literally overturned the agency’s vaccine mandate, but you would have to be pretty foolish or wildly optimistic about changing the justices’ minds to pursue the case any further in the appeals court knowing what the result will be if it is again appealed to the same court. Most of the initial business and government reactions to the ruling view it this way.
We were not alone in seeing the writing on the wall. Effective Jan. 26, OSHA officially withdrew the ETS vaccine-or-test order for employers with 100 or more workers. However, Biden has called on businesses to voluntarily implement those requirements. Secretary of Labor Marty Walsh said OSHA will use its existing powers to protect workers from COVID-19, as OSHA can still investigate and fine employers for failure to maintain a safe workplace.
The justices’ decision hewed fairly closely to what we had predicted after Chief Justice John Roberts scheduled the Jan. 7 hearing back in December, including the view that OSHA had overreached its authority by following Biden’s order to issue an ETS instead of adhering to formal rulemaking procedures as required by federal law for such a sweeping rule that would have applied to 84 million Americans.
By a 5-4 margin, the court upheld a similar mandate issued by the Centers for Medicare and Medicaid Services (CMS) requiring approximately 76,000 healthcare facilities that accept federal money, including hospitals and long-term care, vaccinate their more than 10.3 million workers. Roberts and Associate Justice Brett Kavanaugh joined the three liberal justices in upholding that program.
The justices determined the CMS enabling statutes give the agency the authority to develop health standards for those participating in the programs it supervises.
You can expect that OSHA and other federal agencies that regulate employers will persist in pressing forward with other hot-button issues on the Biden administration’s regulatory agenda, including those initiated in 2021 before COVID-19 policy overwhelmed other priorities.
Before the Supreme Court vaccine decision was issued, OSHA announced the end of its COVID-19 ETS for healthcare workers, which was adopted last June under a separate executive order Biden signed on Jan. 21, 2021, the day after his inauguration. Because any ETS order can last only six months unless renewed by the agency, the announcement was redundant except to lay out how the agency intends to pursue the same requirements in the future.
In the process of ending the ETS requirement for healthcare workers, OSHA made a point of stating that it will continue to enforce aspects of the standard—including employer recordkeeping requirements—under the authority of the OSHA’s general duty clause while it continues working on a permanent rule to replace the ETS.
You can also expect that OSHA and other federal agencies that regulate employers will persist in pressing forward with other hot-button issues on the Biden administration’s regulatory agenda, including those they initiated in 2021 before COVID-19 policy seemed to overwhelm other priorities.
As of press time, COVID-19 cases were surging across the United States and the world due to the highly contagious Omicron and Delta variants. The impact has been felt throughout the supply chain and other sectors of the economy where staff shortages are arising everywhere following the virus’s rapid spread.
Workforce numbers have plummeted due to the advancing illness and quarantine requirements keeping many employees home for anywhere from five to 14 days. This also has been blamed for the sustained supply chain crisis by thinning the ranks of trucking, airline and port workers, among others.
COVID-19 obviously has become a continuing crisis that federal, state and local governments will have to grapple with for years to come. Keep in mind that vaccine mandates other than federal OSHA’s still survive where private and government employers have imposed them. Some states and cities, most recently New York City, also are enforcing their own vaccine requirements for employers.
Where OSHA Is Heading
In other areas where OSHA is active, life goes on. There will be plenty to deal with in what is already proving to be an eventful year—not the least because of a momentous mid-term election this November, which could scupper Biden’s ambitious legislative agenda. That agenda was already bruised and battered in 2021 and the early days of this year, when several of his major pieces of ambitious legislation, including the Build Back Better Act and Voting Rights Bill, stalled in the split Senate.
Last year, OSHA found its limited staff resources stretched thin under pressure exerted by the demands of its responsibility for creating and enforcing not one, but two, COVID-19 ETS rules issued under direct order from Biden.
OSHA is a division of the U.S. Department of Labor and is headed by the Assistant Secretary of Labor for Occupational Safety and Health. Douglas L. Parker assumed that position after being sworn in Nov. 5, 2021. An attorney by trade, Parker previously served as the chief of the California Division of Occupational Safety and Health (Cal/OSHA), and as deputy assistant secretary for policy for Mine Safety and Health Administration (MSHA) in the Obama administration.
Following news of his nomination, other lawyers described Parker as being “consistently focused on the advancement of three priorities: Democratic Party politics, organized labor and occupational safety and health.” Given his background, he can be expected to be a loyal foot soldier in Biden’s bureaucratic army.
In spite of the extra pressure Biden exerted on OSHA when he demanded that it take point in advancing his civilian COVID-19 vaccine policy, the agency managed to launch several unrelated initiatives last year that caught employers’ attention. One of those deals with excessive heat and noise in the workplace, something the agency has identified as a top priority.
OSHA also reports that a permanent standard for heat illness prevention in outdoor and indoor work settings is in the pre-rule stage. An advanced notice of proposed rulemaking was issued and the period for gathering comments ended Dec. 27, 2021. It will be a while yet before employers see a formal published notice of proposed rulemaking, but it is targeted to be issued before the end of this year.
While the proposed heat standard is still in its preliminary stage and its final contents are not yet clear, it could require break times and order employers to monitor employee acclimatization as well as temperatures and humidity levels in workplaces. It is believed that the standard has been developed with the view of posing a direct challenge to operators of warehouses and distribution centers where excessive heat has been a problem in the past, although companies like Amazon have been addressing it in recent years.
At the end of September 2021, OSHA ordered all of its regional offices to step up inspections of facilities for heat-related complaints and whenever inspectors witness workers toiling in conditions involving excessive heat. They were also instructed to pay attention to hot working conditions this during regular inspections. Employers can expect more of this sort of activity in 2022.
In terms of enforcing the agency’s noise hazard standard, a regional emphasis program (REP) was launched last year in OSHA’s Region 5, stepping up enforcement of noise regulations in Illinois, Indiana, Michigan, Minnesota, Ohio and Wisconsin. Since then, the agency added REPs in seven of OSHA’s 10 regions, including all of the U.S. east of the Mississippi and the Pacific Northwest.
In addition, the agency is working to renew an Obama-era initiative that would require employers to file their annual injury and illness logs electronically via an Internet portal. When this proceeding opens, expect fireworks for the same reasons it was controversial during the Obama administration. The electronic forms OSHA gathers would be open to public inquiry, creating a happy hunting ground for labor union organizers and tort lawyers bent on locating plaintiffs they can persuade to sue their employers.
Also at the pre-rules stage are proceedings intended to deal with the following issues:
- Revising the recommended process safety management (PSM) and prevention practices needed to avoid major chemical accidents in regard to highly hazardous materials, with an emphasis on encouraging greater employee involvement.
- An update of the emergency response and preparedness standard. OSHA said it is considering the update because its current standards don’t reflect all the major developments in safety and health practices that already have been accepted by the emergency response community and incorporated into industry consensus standards.
- An update of mechanical power press requirements. OSHA gathered public comments last year and expects to wrap up its analysis of the data gathered in March.
- New guidance aimed at dealing with the prevention of workplace violence in healthcare and social assistance work settings. OSHA began gathering information in 2016, but this has advanced to the stage where the agency is performing a small business impact study before issuing a rulemaking proposal.
- A rulemaking aimed at revising upward the blood lead level standards for medical removal.
Some of these proceedings have been hanging fire at OSHA as far back as 2013, but the agency states that they are due to gain much greater visibility by appearing as formal proposed rulemakings to be announced this year, leading to the eventual adoption of final rules.
David Sparkman is founding editor of ACWI Advance (www.acwi.org) and contributing editor to EHS Today.