The COVID-19 ETS Is Gone, But Employers Must Still Take and Implement Workplace Protections – or Fail at Their Peril

As the entire country should know by now, on January 13, 2022, the United States Supreme Court issued an Opinion reinstating the stay of enforcement by OSHA of its Emergency Temporary Standard for COVID-19 (ETS).  You can read what we wrote about this opinion, as well as the Supreme Court opinion that eliminated the stay with respect to the CMS Mandate, here. 

The Court’s opinion reinstating the ETS stay will likely have the effect of eliminating any possibility of success for OSHA as it continues to litigate over the ETS, and is further likely to dissuade OSHA from seeking to implement a permanent standard with respect to COVID under its normal publication and comment approach.  However, that does not mean employers can ignore OSHA, or ignore the necessity to implement policies and procedures to ensure a safe workplace from COVID exposure. 

Quite the opposite – OSHA is now going to “double down” on its enforcement with respect to employers by using the OSH Act General Duty Clause for support in issuing citations to employers who fail to take reasonable measures to thwart the spread of COVID to their employees in the workplace.

As we informed you earlier (here and here), OSHA had already started using the General Duty Clause and a newly implemented National Emphasis Program to support the issuance of COVID-19 related citations prior to publishing the ETS.  And, with the defeat before the Supreme Court, the Department of Labor Secretary, Marty Walsh, emphasized the continued use of these two “arrows” in OSHA’s quiver to keep employees safe:

We urge all employers to require workers to get vaccinated or tested weekly to most effectively fight this deadly virus in the workplace. Employers are responsible for the safety of their workers on the job, and OSHA has comprehensive COVID-19 guidance to help them uphold their obligation.  Regardless of the ultimate outcome of these proceedings [over the ETS], 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.

To date, OSHA has issued more than 700 COVID-related citations with accumulated penalties in excess of $4M.  The most common regulation used for these citations has been the respiratory protection standard; however, the general duty clause has featured prominently as a basis for citation.  And, as OSHA’s penalty assessment caps increased to $14,502 (for a Serious violation) and $145,027 (for a Willful or Repeat violation), as of January 15, employers can expect the penalties associated with COVID-related violations to also increase.

But, OSHA is not the only reason to ensure adequate workplace safety measures are implemented.  Earlier this month, we saw one of the first lawsuits to bring a claim against an employer based on a failure to implement sufficient safety protocols in the workplace as a basis for a negligence suit survive and move forward.  In the lawsuit, an employee contracted COVID in the workplace.  She then brought the virus home and her husband contracted COVID as well.  The employee’s husband later died from COVID-related complications.  The employee, and her children, sued her employer alleging a failure to implement sufficient workplace safety measures to keep her safe in the workplace, which led to her husband’s death.  The employer sought to dismiss the lawsuit based on the exclusive remedy bar created by worker’s compensation.  The court, however, disagreed.  The court found that the worker’s compensation bar could prohibit a claim for the employee’s own injury or illness suffered as a result of exposure in the workplace, but because the husband was not part of the compact between “employee-employer” for which the worker’s compensation act was implemented, the claim could go forward.

Many similar lawsuits have been brought in various states, some more successful than others.  However, this is a strong reminder that implementation of “adequate” workplace safety measures – even if not pursuant to the ETS – may be viewed as “necessary” simply in order to avoid these sort of negligence claims.