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Supreme Court Blocks ETS…Now What?

As has been widely reported, on Wednesday, January 13, the Supreme Court has reinstated the injunction or “stay” blocking enforcement of the OSHA Vaccine/Testing Emergency Temporary Standard (ETS) by a 6-3 decision. This decision by the Supreme Court makes it very unlikely that the ETS will ever be enforced before it would be due to expire on May 5, 2022. The ruling by the Supreme Court, however, does not prevent OSHA from developing and implementing a permanent Covid-19, “infectious disease,” and/or “airborne/aerosol transmissible disease” standard at some point during 2022.

A published notice of proposed rulemaking for an “infectious disease” standard originally developed in 2010 has been updated and indicates that it will be released in April 2022. The public announcement for the proposed rule states:

“Health care workers and workers in related occupations, or who are exposed in other high-risk environments, are at increased risk of contracting TB, SARS, Methicillin-Resistant Staphylococcus Aureus (MRSA), COVID-19, and other infectious diseases that can be transmitted through a variety of exposure routes.”

OSHA has previously deemed several industries outside of healthcare, including several types of manufacturing, as “high-risk” for exposure to Covid-19—and they are likely to be included in the enforcement of this proposed rule.

The decision by the Supreme Court to block the ETS also does not mean OSHA will cease enforcement related to Covid-19 in the workplace. OSHA will continue to focus its resources on its Covid-19 National Emphasis Program (NEP) by enforcing all existing standards for hazards related to Covid-19.

U.S. Secretary of Labor, Marty Walsh, in part of his statement following the Supreme Court Ruling blocking OSHA’s ETS, stated:

“Regardless of the ultimate outcome of these proceedings, OSHA will 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.”

All clients should continue to be aware of and comply with all Covid-19-related aspects of the following standards:

  • 29 CFR Part 1904, Recording and Reporting Occupational Injuries and Illness.
  • 29 CFR § 1910.132, General Requirements – Personal Protective Equipment.
  • 29 CFR § 1910.134, Respiratory Protection.
  • 29 CFR § 1910.141, Sanitation.
  • 29 CFR § 1910.145, Specification for Accident Prevention Signs and Tags.
  • 29 CFR § 1910.1020, Access to Employee Exposure and Medical Records.
  • Section 5(a)(1), General Duty Clause of the OSH Act.


Please also continue to follow current CDC, local Department of Health, and State/Federal OSHA Covid-19 guidance for the workplace. This includes maintaining documented Covid-19-related policies, procedures, and a risk assessment such as those found in the U.S. Compliance – Infection Control and Prevention Plan. There are also several states with state-sponsored OSHA plans that have Covid-19-specific standards that continue to be enforced, including some with recent updates.

Monitor our Covid Resource Center for regular updates and sign-up to participate in our upcoming free webinar on Monday, January 24, for an update on Covid-19 in the workplace. See additional webinar information below:

Free Webinar: Management of the Covid-19 Pandemic Environment in 2022

Managing Covid-19 in the workplace has many aspects to consider that all require a constant refresh of information. With the current tidal wave of infections, CDC guidance changing frequently, and the recently blocked OSHA Vaccine/Testing ETS as a template for a modified permanent standard that could be issued this year, there are multiple challenges for businesses in this barely two-year-old arena. This webinar will focus on Covid-19 current events, changes in workplace guidance, and scenarios for future regulation.

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