While we all have COVID fatigue, the pandemic continues to impact enforcement and rulemaking as 2022 approaches.
On Nov. 5, OSHA published a vaccination, testing and face coverings emergency temporary standard (ETS) for all industries not covered by the healthcare ETS issued in June. The rule would apply to every other OSHA-regulated workplace in the nation. Since it was issued, the ETS was challenged more than 30 times in nearly every federal appellate court in the country.
The ETS was stayed by the Fifth Circuit Court of Appeal and the consolidated litigation from all circuits assigned to the conservative-leading Sixth Circuit based in Cincinnati. It is likely, regardless of the Sixth Circuit’s decision regarding the ETS, that the determination will be appealed to the Supreme Court.
Still, even if the ETS is defeated as unconstitutional in the court system, OSHA will continue to focus enforcement resources on COVID complaints and workplace hazards. OSHA initiated a national emphasis program, revised as of July 2021, that remains in place, and the agency has demonstrated the ability and willingness to issue significant enforcement actions against employers regarding COVID.
Contrary to OSHA, MSHA has thus far remained steadfast in its position that an MSHA ETS for COVID is not necessary. MSHA can and will continue to rely upon its guidance to the industry. This much was echoed publicly by Galanis on multiple occasions, including during an MSHA stakeholder call in September.
With that said, however, MSHA indicated that it prepared an ETS in the event the agency is forced to put one into effect.
One voice from Washington that has consistently called upon MSHA to issue an ETS is Manchin, whom the MSHA assistant secretary nominee once worked for. As of press time, it was too early to know whether this connection could change MSHA’s current position. But it isn’t a stretch to think it could.
Finally
With the confirmation of Parker and the impending nomination of Williamson, the stage is set for OSHA and MSHA to take a more aggressive posture heading into 2022. Both agencies are working to bring on more enforcement personnel and discuss rulemakings outside of ETSs, such as MSHA’s powered haulage rule and OSHA’s intent to engage in heat stress injury and illness prevent rulemaking.
Additionally, both OSHA and MSHA continue to roll out new enforcement and safety initiatives and emphasis programs. Both agencies also reemphasized their dedication to whistleblower protections, investigations and prosecutions against employers believed to be violating these provisions.
While it is impossible to predict exactly what 2022 holds for workplace safety and health enforcement, the table is set for employers to feel the effects of the Biden administration, which aims to improve workplace safety through enforcement.
Nick Scala is an MSHA/OSHA workplace safety partner at Conn Maciel Carey LLP and chair of the firm’s National MSHA Practice Group. He can be reached at nscala@connmaciel.com