Following its loss at the Supreme Court last week, one might expect the Occupational Safety and Health Administration to throw its hands up and abandon efforts to treat COVID-19 spread as a workplace safety concern. Early indications from the agency point to a different approach.
In a press statement following the court decision, the secretary of labor reminded employers of OSHA’s COVID-19 National Emphasis Program and its intent to use the “General Duty Clause” to hold accountable employers the agency views as subjecting employees to an unreasonable risk of illness or death. This means that federal OSHA will continue to inspect and cite employers it views as lacking generally accepted measures (i.e., CDC guidance) to prevent the spread of COVID-19 infections in the workplace.
In addition to General Duty Clause enforcement, OSHA has indicated its intent to eventually issue a permanent infectious disease control safety standard for the health care industry. Last week, a group of congressional lawmakers sent OSHA a letter seeking expedited promulgation of such a rule.
OSHA could also attempt to reissue the COVID-19 emergency temporary standard (ETS), limiting it to measures not viewed by the Supreme Court as outside its statutory authority. This could include a mask mandate, paid leave requirements, employee training and notifications, and enhanced recordkeeping and reporting measures. However, in response to questions last week, the White House indicated that at the present time it has no intent to issue new emergency rules.
In the short term, the most active COVID-19 workplace safety enforcement may take place at the state level. Some states and municipalities have already adopted the invalidated federal OSHA rules, or have issued their own vaccine mandates for workers in their jurisdictions. While OSHA was handed a major setback by the Supreme Court, this decision will likely not be the last word from workplace safety regulators.