Episode 39: What’s next now that OSHA has withdrawn the Emergency Temporary Standard?

January 26, 2022

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On the heels of the Supreme Court's stay of the private employer vaccine mandate, OSHA has withdrawn its Emergency Temporary Standard (ETS) while it works on a permanent rule. In the meantime, employers remain responsible for keeping employees safe from COVID-19 at work. Ellen McCann joins guest host Nate Smith to discuss this latest development.

OSHA withdrew the ETS but has not abandoned the idea of an employer mandate. On January 25, the Occupational Safety and Health Administration (OSHA) announced it was withdrawing its ETS, thereby making the litigation in the 6th Circuit moot. Instead it will focus on crafting a proposed permanent rule, based on public comments and likely what it has gleaned from the January 13 Supreme Court ruling that stayed the ETS.

What might the permanent rule look like? OSHA asked some specific questions in its request for public comments, which may provide some clues about what the agency will consider when crafting the permanent rule.

Does this change the CMS health care mandate? No. That mandate, which was issued by the Centers for Medicare and Medicaid Services (CMS) not OSHA, goes forward, although it is still being challenged in a lower court.

Are any state or local laws affected by the OSHA decision? Since OSHA withdrew the ETS, it has no impact on state or local laws. Employers should be aware of the patchwork of city and state laws out there — both requiring and prohibiting vaccine mandates.

What should employers do next, in the midst of all this confusion? Employers should bear in mind that there is still a "general duty" clause under the Occupational Safety and Health Act which requires employers to provide their employees with a safe work environment. They should work with their counsel to determine how to fulfill this responsibility.

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Ellen McCann

Assistant Vice President, Leave Solutions — Unum Group

Ellen McCann serves as a leading expert in applying benefits and benefits technology to power modern solutions to more effective employee leave programs, stronger regulatory compliance and enhanced digital HR transformation. In this role, she combines more than 30 years of employment law experience with practical knowledge of the complexities of leave and accommodation management to help develop and create solutions that enable employers to address the challenges of leave and accommodations. She is an acclaimed national speaker on leave management issues including FMLA and ADA, and is a certified trainer for SHRM and CE credit.

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