OSHA Withdraws ETS 2021 Issued to Protect Large Employers from COVID-19 Working Towards a Permanent Standard

Posted in COVID-19, Senior Living

Mary Madison, RN, RAC-CT, CDP 
Clinical Consultant – Briggs Healthcare

OSHA is withdrawing the November 5, 2021, emergency temporary standard (ETS) which was issued to protect unvaccinated employees of large employers (100 or more employees) from the risk of contracting COVID-19 by strongly encouraging vaccination. The announcement came in the form of publication in the Federal Register on January 26, 2022.

“Although OSHA is withdrawing the Vaccination and Testing ETS as an enforceable emergency temporary standard, OSHA is not withdrawing the ETS to the extent that it serves as a proposed rule under section 6(c)(3) of the Act, and this action does not affect the ETS’s status as a proposal under section 6(b) of the Act or otherwise affect the status of the notice-and-comment rulemaking commenced by the Vaccination and Testing ETS. See 29 U.S.C. 655(c)(3).

Notwithstanding the withdrawal of the Vaccination and Testing ETS, OSHA continues to strongly encourage the vaccination of workers against the continuing dangers posed by COVID-19 in the workplace.

OSHA has removed the reference to § 1910.501 from the introductory text of the Mini Respiratory Protection requirements in § 1910.504 because the former section is now removed. The Mini Respiratory Protection Program section is retained, however, because it remains a requirement for respirator use under § 1910.502(f)(4). Similarly, OSHA has revised the incorporation-by-reference list in § 1910.509 by removing the reference to § 1910.501(h) from § 1910.509(b)(5), as the incorporation by reference list now pertains only to documents incorporated by reference in § 1910.502.

Because these minor revisions do not make any substantive change to the duties of employers, OSHA finds good cause that the opportunity for public comment on these revisions is unnecessary within the meaning of 5 U.S.C. 553(b)(B) and 29 U.S.C. 655(b). In addition, OSHA finds that public comment is impracticable in light of the need to provide clarity to the regulated community and to workers.”

Word on the street, so to speak, is that OSHA is not giving up but rather regrouping and that we could see a permanent standard this spring/early summer. That was very evident this morning (February 1, 2022) when OSHA delivered its QuickTakes newsletter for February.

Clicking on the 2nd link from the above screenshot, one is taken to the Statement on the Status of the OSHA COVID-19 Healthcare ETS on December 27, 2021. That statement was made about 2 weeks prior to the Supreme Court ruling in January.

Clicking on the 1st link, you’re taken to Statement on the Status of the OSHA COVID-19 Vaccination and Testing ETS on January 25, 2022, just 1 day prior to the Federal Register publication.  Note this verbiage within that statement:

Although OSHA is withdrawing the vaccination and testing ETS as an enforceable emergency temporary standard, the agency is not withdrawing the ETS as a proposed rule. The agency is prioritizing its resources to focus on finalizing a permanent COVID-19 Healthcare Standard.