January 20, 2022

Update: Cal/OSHA ETS – Federal OSHA

The rollercoaster may have stopped, but the Emergency Temporary Standards (ETS) ride isn’t over yet.

Federal OSHA ETS
January 13, 2022 saw the U.S. Supreme Court rule against the Fed OSHA’s authority to impose its COVID-19 ETS mandate. The Court’s ruling stays the Fed OSHA ETS from taking effect and sends the matter back to the Sixth Circuit Court of Appeals for resolution. Given the Court’s opinion that those in opposition to Fed OSHA ETS implementation “are likely to succeed on the merits of their claim,[i]” and citing a “lack of historical precedent” as a “telling indication” that Fed OSHA has exceeded its authority in imposing the ETS, it is not likely the Sixth Circuit will find in opposition to the Court’s initial findings.

Status of the Fed OSHA ETS: While this case is on remand to the Sixth Circuit, employers are not required to meet any previously noted Fed OSHA ETS deadlines.[ii]

California OSHA ETS (Cal/OSHA ETS)
As discussed here, Cal/OSHA updated the state’s ETS on December 16, 2021. These updates took effect on January 14, 2022 and apply to all California employers. It is important to note that in addition to the Cal/OSHA ETS, employers must also follow public health orders on COVID-19 issued by the California Department of Public Health.

Status of Cal/OSHA ETS: Cal/OSHA Standards Board (the Board) is scheduled to meet on January 20, 2022, and the meeting agenda includes consideration of a Horcher proposal (a verbatim adoption of the federal OSHA regulation) of the Fed OSHA ETS. However, consideration of a Horcher proposal will not take place on January 20, but instead will be delayed until the federal court proceedings have concluded.

The Board’s public meeting agenda current provides for public discussion on potential new mandates relating to vaccination, testing, face coverings, and severability[iii].

Next Steps
If we have learned one thing from the chaos of nearly two years of pandemic-related regulations, mandates, and guidelines it is that patience truly is a virtue. In the early days of the pandemic employees looked to their employers as a trusted source of information and guidance. Honoring that trust with ongoing communication and continued messages of patience and flexibility will strengthen the employer/employee relationship and lead to fewer miscommunications. Employers should not hesitate to speak plainly about the challenges presented with constantly changing regulations and the efforts they are taking to keep employees safe and informed.

Members with questions about Fed OSHA ETS or Cal/OSHA ETS should contact Western Growers.

[i] The initial claim is that the Secretary of Labor lacked authority to impose the ETS mandate.

[ii] The U. S. Supreme Court also ruled on the legality of the Department of Health and Human Services (HHS) Center for Medicare & Medicaid Services (CMS) Program Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule. The Court’s ruling found the CMS vaccination mandates were within the Secretary of HHS’s authority and are enforceable in all states for healthcare workers.

[iii] Severability – in this context – refers to a legal clause that would allow for the remainder of a rule or regulation (e.g., ETS) to remain in effect, even if part of the rule or regulation is deemed unlawful.