The demise of the OSHA Covid-19 rule does not allow employers to get off the hook
The demise of the OSHA Covid-19 rule does not allow employers to get off the hook

The demise of the OSHA Covid-19 rule does not allow employers to get off the hook

Many large employers breathed a sigh of relief after the US Supreme Court ruled against implementation – and the Biden administration then withdrew the OSHA Covid-19 shot or test temporary emergency standard. But while the court’s settlement of the ETS was certainly good news for employers in the 29 states and territories covered by federal OSHA, employers are still not out of OSHA’s regulatory reach when it comes to taking steps to protect employees from Covid- 19.

OSHA announced that it will continue its Covid-19 enforcement efforts through the Occupational Safety and Health Act’s general duty clause (which applies to all employers), its Covid-19 National Emphasis Program and other OSHA standards. And OSHA should be expected to keep its promise. To date, the agency has issued over $ 4 million in fines for Covid-19 safety violations, based on the general duty clause and respiratory protection, registration and other OSHA standards.

It is possible that OSHA may try to implement a more targeted Covid-19 ETS or permanent standard. Regardless of the Board’s strong position on Covid-19, there should be no doubt that the Agency will continue to issue citations for Covid-19-related security issues. And if large OSHA penalties is not enough to worry employers, the negative media attention that employers may receive as a result of OSHA’s practice of publicly embarrassing employers on their website should make all employers think twice.

Given the lack of a uniform federal Covid-19 safety standard and the vague OSH Act general duty clause, which imprecisely stipulates that employers keep their workplaces “free of recognized hazards that cause or are likely to cause death or serious bodily injury to employees,” what should employers do?

The employer’s riddle

First, employers should review OSHA’s Covid-19 Guide and CDC’s current mask guide (which in particular is more stringent than the failed ETS’s mask requirement), as OSHA typically follows the CDC’s lead and quotes an employer for not following the guide is fair game.

Although there is no “one-size-fits-all” approach, employers should consider requiring social distancing or masks for the unvaccinated in congested workplace areas and requiring symptomatic staff to stay home, especially when community dispersal is high. In addition, employers should write their policies in writing and communicate them to employees via email, workplace signage and meetings.

It’s no secret that OSHA likes employers putting policies in writing. And if OSHA ever gets knocked on, employers with written policies will have a much easier time proving that such policies exist.

Employers must also consider the patchwork of state and local laws in which they operate. New York, for example, passed the Health and Essential Rights (HERO) Act, which requires employers to implement airborne infectious disease prevention plans.

Although California’s universal mask mandate expired for vaccinated workers on February 15 (but will remain in effect for unvaccinated workers), Los Angeles and Santa Clara counties announced they will continue the mask mandate for the foreseeable future. And not to be outdone, in December 2021, New York City issued a vaccine mandate for all employers.

Meanwhile, some states and localities have gone in the opposite direction by banning employers from implementing mask or vaccine mandates. But even in these places, most employers are free to implement social distancing, testing, symptom control, and other Covid-19-related precautions.

OSHA is not the only thing employers need to follow

No matter how OSHA tackles Covid-19 issues, employers need to be aware of other laws and regulations involved in the workplace.

Despite clear evidence that Covid-19 is spread between people in several ways and therefore can be transmitted just outside the workplace as it is in the workplace, an early trend in the pandemic emerged as several states extended the work compensation coverage for certain workers to include Covid-19 as a compensable injury or illness.

Similarly, in 2021, the Equal Employment Opportunity Commission updated its guidancerecognizing that Covid-19, like other medical conditions, may constitute a disability under the American With Disabilities Act.

A more recent trend concerns Covid-19 vaccines. According to the National Council on Compensation Insurance, Wisconsin, Ohio, Alabama, Kentucky, New Hampshire, Alabama, and South Carolina have introduced, or announced plans to introduce, legislation that either extends occupational injury coverage to include an employee’s adverse reaction or injury. as a result of an employer vaccine mandate or give vaccine-injured employees the right to circumvent the occupational injury scheme and sue employers in court for financial compensation.

In addition, Covid-19 “take-home” cases – wrongful deaths and related lawsuits filed by family members of employees who have had Covid-19 at work and inevitably brought it home and infected others –is reportedly on the rise.

Some states have passed laws on safe harbor immunity that protect companies from such claims, but these laws vary in scope and in many cases only grant immunity to companies if they can demonstrate compliance, or at least an attempt in good faith. to comply with applicable federal regulations. , state and local Covid-19 health standards.

Now that the case on OSHA ETS is closed, most private employers have more flexibility to implement the best plan for their workforce. What seems clear, however, is that employers who choose to remove Covid-19 safeguards are likely to do so at their own risk.

Case employers, no matter where they operate, will continue to implement (and consistently enforce) some minimum labor force protection as long as federal, state and local Covid-19 related guidelines and orders remain in force.

This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax or its owners.

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Kelley Barnett is an employment, recruitment and procurement lawyer for AmTrust Financial Services. She advises AmTrust’s management team and AmTrust companies in the US, UK and Europe on employee relations, harassment, discrimination, benefits and unfair competition, in addition to dealing with employment cases.

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