Supreme Court mulling decision on OSHA’s ETS on COVID-19

First published by Safety+Health an NSC publication

Washington — Who gets to decide how to protect workers against COVID-19? That was one of the central questions posed by opponents of OSHA’s emergency temporary standard on COVID-19 vaccination, testing and masking during a Jan. 7 hearing before the U.S. Supreme Court.

Scott Keller, attorney for the National Federation of Independent Business, presented the question in a response to questioning from Justice Stephen Breyer early in the two-hour hearing. “You said the question is, ‘Who decides?’” Justice Elena Kagan said to Keller later in the hearing. “I think that’s right. I think that is the question.”

Kagan contended in her questioning that OSHA has experts on workplace safety and is politically accountable to the public via the election of presidents and representatives in Congress.

“Courts are not politically accountable,” she said. “Courts have not been elected. Courts have no epidemiological expertise. Why in the world would courts decide this question?”

Keller and Ohio Solicitor General Benjamin Flowers contended that Congress didn’t give OSHA clear authority to address vaccinations in the Occupational Safety and Health Act of 1970. The duo also argued that states and private businesses can decide how to protect workers from COVID-19.

Chief Justice John Roberts expressed similar thoughts to U.S. Solicitor General Elizabeth Prelogar, who was arguing on behalf of the government.

“It sounds like the sort of thing that states will be responding to, or should be, and Congress should be responding to, rather than agency by agency of the federal government and the executive branch acting alone.”

Justice Sonia Sotomayor mentioned that “certain states … are stopping employers from requiring vaccines” and masks.

“Why shouldn’t the federal government, which … Congress has decided to give OSHA the power to regulate workplace safety, have a national rule that will protect workers?” she asked.

Reading from the OSH Act, Sotomayor noted that Congress gave OSHA the authority to develop “innovative methods, techniques and approaches for dealing with occupational health and safety problems.”

Prelogar pointed to Section 20(a)(5), which reads: “Nothing in this or any other provision of this act shall be deemed to authorize or require medical examination, immunization, or treatment for those who object thereto on religious grounds, except where such is necessary for the protection of the health or safety of others.”

OSHA extends comment period for COVID-19 ETS

First published by Safety+Health an NSC publication

Washington — OSHA has extended until Jan. 19 the comment period on its emergency temporary standard on COVID-19 vaccination, testing and masking.

According to a Nov. 30 press release, the extension allows stakeholders additional time to review the ETS as well as collect information and data necessary for comment. OSHA published the ETS in the Nov. 5 Federal Register, with the initial comment period slated to end Dec. 6.

The fate of the ETS is still unclear. The 5th U.S. Circuit Court of Appeals halted the implementation and enforcement of the rule by granting a stay Nov. 12. The 6th Circuit Court of Appeals is slated to consider a consolidated challenge to the ETS in the near future.


McCraren Compliance offers many opportunities in safety training to help circumvent accidents. Please take a moment to visit our calendar of classes to see what we can do to help your safety measures from training to consulting.

OSHA ETS on COVID-19 wouldn’t apply to most truckers

First published by Safety+Health an NSC publication

Washington — The majority of truck drivers will be exempt from OSHA’s emergency temporary standard on COVID-19 vaccination, testing and masking, Labor Secretary Marty Walsh said during a recent TV interview.

Should the ETS survive the multiple legal challenges it’s facing, it would apply to employers with more than 100 employees. Those employers would have until Dec. 5 to develop, implement and enforce a mandatory COVID-19 vaccination policy – or develop a policy that gives employees the choice to get vaccinated or undergo weekly COVID-19 testing.

Meanwhile, covered employees would have a deadline of Jan. 4 to be fully vaccinated or begin undergoing weekly COVID-19 testing. Unvaccinated workers also would be required to wear a face covering while indoors or in a vehicle “with another person for work purposes.”

Reacting to concerns from trucking groups – including the American Trucking Associations – over the ETS, Walsh said during the interview on CNBC that “the ironic thing is most truckers aren’t covered by this because they’re driving a truck, they’re in a cab, they’re by themselves. They wouldn’t be covered by this.”

ATA and other groups fear that many drivers would leave the industry as a result of the ETS, amid a perceived shortage of drivers.

In a statement issued shortly after Walsh’s comments, ATA President and CEO Chris Spear called them “an enormous victory for our association and industry.”

Spear continued: “Given the nationwide shortage of truck drivers, it is vital that our industry has the relief it needs to keep critical goods moving, including food, fuel, medicine and the (COVID-19) vaccine itself.”

In a letter dated Oct. 21 and addressed to Sharon Block, acting administrator of the Office of Information and Regulatory Affairs, Spear wrote that the association was “gravely concerned” about the impact the ETS would have on the industry, which he estimated could lead to a loss of “up to 37% of drivers to retirements, attrition to smaller carriers and/or conversion to independent contractor owner-operators.”

A Department of Labor spokesperson told CNBC that the vaccination, testing and masking requirements would apply to truck drivers who work in teams – such as two people in a cab – or those who “interact with people in buildings at their destinations or starting points.”


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Court issues stay of OSHA ETS on COVID-19 vaccination, testing

First published by Safety+Health an NSC publication

Photo property of OSHA

The 5th U.S. Circuit Court of Appeals has put a temporary halt to OSHA’s emergency temporary standard on COVID-19 vaccination, testing and masking by granting an emergency motion Nov. 5.

The three judges granted the stay, pending an expedited review, because “the petitions give cause to believe there are grave statutory and constitutional issues with the [ETS].” They also gave OSHA and the Department of Labor until 5 p.m. on Nov. 8 to respond to a request for a permanent injunction from the petitioners, which include Louisiana, Mississippi, South Carolina, Texas, Utah, businesses, and religious and advocacy groups.

The suit is among a number of court challenges against the ETS, according to multiple sources.

On Oct. 29, the Supreme Court refused to block a vaccine mandate for health care workers in Maine. That same day, the 2nd U.S. Circuit Court of Appeals reversed a lower court’s decision to block a vaccine mandate for health care workers in New York.

Similarly, in August, Supreme Court Justice Amy Coney Barrett turned down an appeal from Indiana University students to block their school’s vaccination requirement.

OSHA published its ETS, which would apply to employers with at least 100 employees, in the Nov. 5 Federal Register. Covered employers would have until Dec. 5 to develop, implement and enforce a mandatory COVID-19 vaccination policy – or develop a policy that gives employees the choice to get vaccinated or undergo weekly COVID-19 testing.

Covered employees would have a deadline of Jan. 4 to be fully vaccinated or begin undergoing weekly COVID-19 testing. Under the ETS, unvaccinated workers would be required to wear a face covering while indoors or in a vehicle “with another person for work purposes.”

The ETS directs employers to provide paid time off to receive a vaccine – up to four hours for each dose – and paid leave for any side effects from vaccinations. The 30 days would allow employers time to determine the vaccination status of employees and get any documentation in order, among other considerations. It also would give workers time to get their only dose or the first of two doses of a vaccine.

According to an OSHA fact sheet, the ETS wouldn’t apply to employees who work from home, work “exclusively outdoors” or don’t report to a workplace “where other individuals are present.”

During a Nov. 4 press conference, OSHA Deputy Assistant Secretary Jim Frederick said many employers already are complying with the requirements of the ETS. He also noted that the agency chose the 100-employee threshold because employers with that many workers typically have the “administrative capacity” to implement the requirements of the ETS “promptly.”

He added: “We know that the vast majority of workplaces will comply with this rule.”

The ETS includes a 30-day comment period. One subject OSHA is seeking to learn more about is “the ability of employers with fewer than 100 employees to implement COVID-19 vaccination and/or testing programs.” This means the employee threshold could be adjusted in the future.

Frederick noted that the agency will provide “robust” compliance assistance along with outreach to companies.

In addition to the fact sheet on the ETS, OSHA has an ETS summary, a set of frequently asked questions and answers, and sample policies for employers.

In response to the ETS news, Sen. Mike Braun (R-IN) announced that he’s leading an effort – with the support of at least 40 other lawmakers – to overturn the regulation under the Congressional Review Act. However, the CRA requires approval from both the House and Senate as well as a presidential signature, so the attempt is largely symbolic.

“This unacceptable federal directive impacts tens of millions of Americans and warrants review by Congress,” Braun said in a press release.

OSHA estimates that two-thirds of private-sector workers, or around 84 million, would be covered under the ETS, which would preempt any state laws, according to Department of Labor Solicitor Seema Nanda. State Plans would have to adopt standards that are “at least as effective as” federal OSHA’s.


McCraren Compliance offers many opportunities in safety training to help circumvent accidents. Please take a moment to visit our calendar of classes to see what we can do to help your safety measures from training to consulting.

OSHA ETS sets deadline of Jan. 4 for worker vaccination

First published by Safety+Health an NSC publication

OSHA will officially publish its emergency temporary standard on COVID-19 vaccination and testing, which will apply to employers with more than 100 employees, in the Nov. 5 Federal Register.

Covered employers will have until Dec. 5 to develop, implement and enforce a mandatory COVID-19 vaccination policy – or develop a policy that gives employees the choice to get vaccinated or undergo weekly COVID-19 testing.

Covered employees will have a deadline of Jan. 4 to be fully vaccinated or begin undergoing weekly COVID-19 testing. Unvaccinated workers also will be required to wear a face covering while indoors or in a vehicle “with another person for work purposes.”

The ETS directs employers to provide paid time off to receive a vaccine – up to four hours for each dose – and paid leave for any side effects from vaccinations. The 30 days will allow employers time to determine the vaccination status of employees and get any documentation in order, among other considerations. It also will give workers time to get their only dose or the first of two doses of a vaccine.

According to an OSHA fact sheet, the ETS won’t apply to employees who work from home, work “exclusively outdoors” or don’t report to a workplace “where other individuals are present.”

During a Nov. 4 press conference, OSHA Deputy Assistant Secretary Jim Frederick said many employers already are complying with the requirements of the ETS. He also noted that the agency chose the 100-employee threshold because employers with that many workers typically have the “administrative capacity” to implement the requirements of the ETS “promptly.”

He added: “We know that the vast majority of workplaces will comply with this rule.”

The ETS includes a 30-day comment period. One subject OSHA is seeking to learn more about is “the ability of employers with fewer than 100 employees to implement COVID-19 vaccination and/or testing programs.” This means the employee threshold could be adjusted in the future.

Frederick noted that the agency will provide “robust” compliance assistance along with outreach to companies.

In addition to the fact sheet on the ETS, OSHA has an ETS summary, a set of frequently asked questions and answers, and sample policies for employers.

In response to the ETS news, Sen. Mike Braun (R-IN) announced that he’s leading an effort – with the support of at least 40 other lawmakers – to overturn the regulation under the Congressional Review Act. However, the CRA requires approval from both the House and Senate as well as the president, so the attempt is largely symbolic.

“This unacceptable federal directive impacts tens of millions of Americans and warrants review by Congress,” Braun said in a press release.

OSHA estimates that two-thirds of private-sector workers, or around 84 million, will be covered under the ETS, which will preempt any state laws, according to Department of Labor Solicitor Seema Nanda. State Plans will have to adopt standards that are “at least as effective as” federal OSHA’s.

The ETS will likely face challenges in the courts. Georgia Gov. Brian Kemp (R) and Georgia Attorney General Chris Carr announced Oct. 29 that they would file a lawsuit against a similar vaccination requirement, from the Biden administration, for federal contractors. South Carolina Gov. Henry McMaster (R), as well as Alabama, Idaho, Kansas and West Virginia, have joined the suit.

Also on Oct. 29, the Supreme Court refused to block a vaccine mandate for health care workers in Maine. That same day, the 2nd U.S. Circuit Court of Appeals reversed a lower court’s decision to block a vaccine mandate for health care workers in New York.

Similarly, in August, Supreme Court Justice Amy Coney Barrett turned down an appeal from Indiana University students to block their school’s vaccination requirement.


McCraren Compliance offers many opportunities in safety training to help circumvent accidents. Please take a moment to visit our calendar of classes to see what we can do to help your safety measures from training to consulting.

OSHA issues ETS to protect workers from coronavirus

First published by OSHA

Increases protections for 84M private sector workers

The U.S. Department of Labor’s Occupational Safety and Health Administration today announced a new emergency temporary standard to protect more than 84 million workers from the spread of the coronavirus on the job. The nation’s unvaccinated workers face grave danger from workplace exposure to coronavirus, and immediate action is necessary to protect them.

Under this standard, covered employers must develop, implement and enforce a mandatory COVID-19 vaccination policy, unless they adopt a policy requiring employees to choose to either be vaccinated or undergo regular COVID-19 testing and wear a face covering at work.

Since 2020, the coronavirus has led to the deaths of 750,000 people in the U.S., and the infection of millions more, making it the deadliest pandemic in the nation’s history. Many of the people killed and infected by this virus were workers whose primary exposures occurred at their jobs. OSHA estimates that this rule will save thousands of lives and prevent more than 250,000 hospitalizations due to workplace exposure to COVID-19 over the course of the ETS.

“COVID-19 has had a devastating impact on workers, and we continue to see dangerous levels of cases,” said U.S. Labor Secretary Marty Walsh. “We must take action to implement this emergency temporary standard to contain the virus and protect people in the workplace against the grave danger of COVID-19. Many businesses understand the benefits of having their workers vaccinated against COVID-19, and we expect many will be pleased to see this OSHA rule go into effect.”

The emergency temporary standard covers employers with 100 or more employees – firm or company-wide – and provides options for compliance. The ETS also requires employers to provide paid time to workers to get vaccinated and to allow for paid leave to recover from any side effects.

The ETS also requires employers to do the following:

  • Determine the vaccination status of each employee, obtain acceptable proof of vaccination status from vaccinated employees and maintain records and a roster of each employee’s vaccination status.
  • Require employees to provide prompt notice when they test positive for COVID-19 or receive a COVID-19 diagnosis. Employers must then remove the employee from the workplace, regardless of vaccination status; employers must not allow them to return to work until they meet required criteria.
  • Ensure each worker who is not fully vaccinated is tested for COVID-19 at least weekly (if the worker is in the workplace at least once a week) or within 7 days before returning to work (if the worker is away from the workplace for a week or longer).
  • Ensure that, in most circumstances, each employee who has not been fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes.

The emergency temporary standard does not require employers to pay for testing. Employers may be required to pay for testing to comply with other laws, regulations, collective bargaining agreements, or other collectively negotiated agreements. Employers are also not required to pay for face coverings. Continue Reading»


McCraren Compliance offers many opportunities in safety training to help circumvent accidents. Please take a moment to visit our calendar of classes to see what we can do to help your safety measures from training to consulting.

OSHA acting head gives update on emergency temporary standard on COVID-19 vaccination, testing

First published by Safety+Health an NSC publication

Washington — OSHA is working “expeditiously” on an emergency temporary standard on COVID-19 vaccination and testing, acting agency administrator Jim Frederick said during an Oct. 7 webinar hosted by the National Safety Council.

Frederick didn’t provide a time frame for when the ETS might be issued.

“We’re considering the scope and the terms of the potential ETS as described by [President Joe Biden],” Frederick said. “We know that the pandemic will continue to evolve, and we’ll continue to monitor vaccination trend data, variants of the virus and other factors that will guide our continued efforts to ensure workers are protected from the virus while they’re on the job.”

Biden announced Sept. 9 that OSHA is developing an ETS that will require employers with at least 100 workers to “ensure their workforces are fully vaccinated or show a negative test at least once a week.”

Frederick acknowledged that the “expedited nature” of an ETS “unfortunately” doesn’t allow for public comment before its publication. However, he said the ETS essentially serves as a proposed rule and would allow for comments that could guide the drafting of a permanent standard, if OSHA chooses to issue one.

“We do hear everyone,” Frederick said. “We have heard issues from every source possible and are certainly taking into account everything that we can as we move through the process.”


McCraren Compliance offers many opportunities in safety training to help circumvent accidents. Please take a moment to visit our calendar of classes to see what we can do to help your safety measures from training to consulting.

Fall Protection remains atop OSHA’s ‘Top 10’ list of most frequently cited violations

First published by Safety+Health an NSC publication

Orlando, FL — For the 11th consecutive fiscal year, Fall Protection – General Requirements is OSHA’s most frequently cited standard, the agency and Safety+Health announced Oct. 12 during the 2021 NSC Safety Congress & Expo.

Appearing virtually, Patrick Kapust, deputy director of OSHA’s Directorate of Enforcement Programs, presented the preliminary list, which represents OSHA Information System data from FY 2021 (Oct. 1, 2020, to Sept. 30). S+H Associate Editor Kevin Druley moderated the session from the Valencia Ballroom at the Orange County Convention Center.

Although several standards swapped positions, the standards that make up the Top 10 remained unchanged from FY 2020. Hazard Communication, which ranked as the second most frequently cited standard a year ago, fell to No. 5 in FY 2021. Among other notable movement, Respiratory Protection rose one spot to No. 2, while Powered Industrial Trucks fell two spots, dropping to ninth from seventh.

“Employers need to make sure their employees are protected,” Kapust said during the presentation. “The Top 10 tells us what OSHA is finding over and over again on a routine basis. Employers, use the list as a tool to assess your own workplace.”

The full list:

  1. Fall Protection – General Requirements (1926.501): 5,295 violations
  2. Respiratory Protection (1910.134): 2,527
  3. Ladders (1926.1053): 2,026
  4. Scaffolding (1926.451): 1,948
  5. Hazard Communication (1910.1200): 1,947
  6. Lockout/Tagout (1910.147): 1,698
  7. Fall Protection – Training Requirements (1926.503): 1,666
  8. Personal Protective and Lifesaving Equipment – Eye and Face Protection (1926.102): 1,452
  9. Powered Industrial Trucks (1910.178): 1,420
  10. Machine Guarding (1910.212): 1,113

“Throughout the pandemic, workplace safety has become more important than ever,” said Lorraine Martin, NSC president and CEO. “Although incredible advancements are made in safety each year, the OSHA Top 10 list reminds us that we must continue to pinpoint areas where we can improve so we can better prioritize workplace safety in the future world of work.”

Finalized data, along with additional details and exclusive content, will be published in the December issue of S+H.


McCraren Compliance offers many opportunities in safety training to help circumvent accidents. Please take a moment to visit our calendar of classes to see what we can do to help your safety measures from training to consulting.

House Republicans call on DOL to suspend work on COVID-19 vaccination and testing mandate

First published by Safety+Health an NSC publication

Marty-Walsh1.jpg

Photo: U.S. Department of Labor Flickr

Washington — Concerned about the effects a potential OSHA mandate for COVID-19 vaccination and testing in the workplace would have on certain businesses, the Republicans on the House Education and Labor Committee are calling on Labor Secretary Marty Walsh to suspend work on that effort.

On Sept. 9, President Joe Biden announced that OSHA is developing an emergency temporary standard that will require employers with at least 100 workers to “ensure their workforces are fully vaccinated or show a negative test at least once a week.”

In a letter sent to Walsh and dated Sept. 29, ranking member Rep. Virginia Foxx (NC) and her 22 Republican colleagues on the committee express particular concern about the Department of Labor’s plan not to solicit public input until after the possible ETS goes into effect “despite the plethora of logistical, legal and financial concerns we are hearing from businesses of all sizes in our congressional districts daily.”

On its website, law firm Fisher Phillips notes that the potential ETS could remain in place for up to six months and then be replaced by a permanent rule if OSHA deems one necessary. That rule would have to go through notice-and-comment procedures.

The lawmakers claim that, throughout the history of the agency, OSHA has used its authority to issue ETSs “sparingly.” The agency’s ETS on COVID-19 for health care workers, in effect since June, is its first since 1983.

“A majority of ETSs have been either stayed or invalidated by federal courts,” the lawmakers write.


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Biden says OSHA will issue an emergency temporary standard on COVID-19 vaccination, testing

First published by Safety+Health an NSC publication
Washington — OSHA is developing an emergency rule that will require employers with at least 100 workers to “ensure their workforces are fully vaccinated or show a negative test at least once a week,” President Joe Biden announced Sept. 9.

The announcement was made on the same day the president signed Executive Orders requiring federal employees and most federal contractors to be vaccinated. Additionally, nursing home, hospital, home health care facility and other medical facility workers – who treat Medicare or Medicaid patients – are now required to be vaccinated.

“Some of the biggest companies are already requiring [vaccines],” Biden said. “The bottom line: We’re going to protect vaccinated workers from unvaccinated co-workers. We’re going to reduce the spread of COVID-19 by increasing the share of the workforce that is vaccinated in businesses all across America.”

The emergency rule will require covered employers to give workers paid time off to get a COVID-19 vaccine, Biden said.

A recent survey conducted by the National Safety Council found that employer-required vaccinations resulted in a 35% increase in the number workers who got a shot(s), according a Sept. 10 press release from the nonprofit organization.

“With the nation’s death toll nearing 650,000 lives lost, we must double down on evidence-based solutions – COVID-19 vaccinations – to keep people safe,” NSC President and CEO Lorraine M. Martin said. “Employers are widely trusted by their workers and can play a pivotal role in increasing vaccination rates of people throughout the country to save lives, from the workplace to anyplace.”

In a statement issued Sept. 9, Rep. Virginia Foxx (R-NC), ranking member of the House Education and Labor Committee, said the president had “no business issuing a burdensome vaccine regulation that will further harm overworked and struggling business owners.”

The National Association of Manufacturers, which represents more than 14,000 U.S. businesses, said it looks forward to working with the administration “to ensure any vaccine requirements are structured in a way that does not negatively impact the operations of manufacturers that have been leading through the pandemic to keep Americans safe.”

Meanwhile, Marcy Goldstein-Gelb, co-executive director of the National Council for Occupational Safety and Health, an advocacy group, called the mandate a “missed opportunity” to expand COVID-19 prevention plans to all workplaces. An OSHA emergency temporary standard, which went into effect in June, applies only to health care settings. In addition, National COSH Co-Executive Director Jessica Martinez notes that physical distancing, improved ventilation, shift rotation and personal protective equipment are “important components of an overall plan to reduce risk and stop the virus,” but are missing from Biden’s plan.

Employers who have questions about implementing a vaccine requirement or providing other safety measures can consult resources from SAFER: Safe Actions for Employee Returns – an NSC initiative aimed at developing industry- and risk-specific resources and recommendations for employers.


McCraren Compliance offers many opportunities in safety training to help circumvent accidents. Please take a moment to visit our calendar of classes to see what we can do to help your safety measures from training to consulting.