In the unlikely event the OSHA ETS is resurrected by the Sixth Circuit Court of Appeals, and to inform any future agency COVID-19 workplace safety rulemaking, the Association submitted comments to OSHA outlining practical concerns for large employers related to the ETS.
The Association’s comments expressed concerns with the ETS and with any similar or future federal vaccine mandate or safety standard. Specifically, the Association highlighted key areas that presented practical compliance issues to member companies and offered solutions, including:
- Extending compliance deadlines: Although highly unlikely, if the current ETS comes back into effect employers will need considerably more time to comply than is currently outlined by OSHA.
- Allowing for “good faith” compliance for testing provisions: Given the difficulties associated with acquiring testing materials, employers should only be penalized for noncompliance with testing requirements if they have failed to show a good faith effort to comply.
- Allowing for self-administered testing at home: Employees should be allowed to self-test at home to comply with testing requirements, as such tests are the most efficient and cost-effective testing solution.
- Streamlining compliance with other federal vaccine mandates: All federal vaccine mandates and safety standards should be streamlined such that larger employers subject to multiple mandates or standards can create uniform policies that meet all obligations.
The Association also emphasized member companies’ longstanding commitment to providing safe workplaces for their employees, a commitment that will continue even in the absence of federal mandates or safety standards.
Outlook: Although the original ETS is essentially dead, OSHA and/or the Biden administration could enact other federal COVID-19 safety standards, and OSHA could use the statutory requirement that employers have a "general duty" to provide a safe and healthful workplace to penalize workplaces it deems unsafe. The Association submitted comments to OSHA to ensure member perspectives regarding the ETS and similar safety standards were heard by the Biden administration.