February 4, 2023

Volume XIII, Number 35

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February 03, 2023

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February 02, 2023

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Supreme Court Halts Implementation of OSHA ETS

We take a break from our regularly scheduled “2022 outlook” programming to bring you breaking news on the seesaw that is the enforcement of OSHA’s Emergency Temporary Standard (ETS) regarding COVID-19 vaccination or testing. As we previously reported, It was on, then it was off. Then it was on, and now it is off again. Yesterday, the United States Supreme Court reinstated the stay of OSHA’s ETS, ultimately sending the rule back to the Sixth Circuit to await a full review on the merits.

In the 6-3 opinion, the Supreme Court held that, while OSHA has the authority to regulate “occupational dangers,” it does not have the authority to regulate “public health more broadly.” The Supreme Court held that, while COVID-19 might be present in workplaces, it is not necessarily an occupational hazard in most. “Permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization.”

While the ultimate fate of OSHA’s ETS will continue to play out in the courtroom, U.S. Secretary of Labor Marty Walsh released a statement urging employers to require workers to get vaccinated or tested weekly.  Secretary Walsh also referenced OSHA’s existing COVID-19 guidance as a resource for employers to keep workers safe from COVID-19. Secretary Walsh concluded by saying:

“Regardless of the ultimate outcome of these proceedings, 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.”

Manufacturers should continue to monitor the fate of the OSHA ETS as it heads back to the Sixth Circuit. In addition, the Executive Order related to COVID-19 vaccination/testing for federal contractors that we previously summarized, while currently stayed, may be reinitiated as well. Manufacturers should continue to monitor legal developments related to the Executive Order.

Copyright © 2023 Robinson & Cole LLP. All rights reserved.National Law Review, Volume XII, Number 14
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About this Author

Megan Baroni Environmental attorney Robinson Cole
Partner

Megan Baroni has extensive experience counseling clients on a wide variety of environmental, health, and safety issues. She frequently represents manufacturers and distributors and is a contributing author to the firm's Manufacturing Law Blog, focusing on environmental, health, and safety trends that will impact the industry.
 
Environmental Compliance & Dispute Resolution 
Megan is a trusted advisor on complex environmental compliance issues, including the investigation, remediation, and redevelopment of contaminated properties;...

203.462.7528
Jonathan Schaefer, Robinson Cole Law Firm, Environmental Law Attorney, Hartford
Partner

Jonathan Schaefer, a member of the firm’s Environmental, Energy + Telecommunications Group, focuses his practice on environmental compliance counseling, permitting, site remediation, occupational health and safety, energy regulatory compliance and siting, and litigation related to federal and state regulatory programs. His experiences enable him to work effectively with experts and legal counsel to help clients minimize risk and solve compliance, enforcement, transactional, and regulatory matters.

Environmental Counseling

...
860-275-8349
Abby Warren Labor and Employment Attorney
Partner

Abby Warren is a member of the firm's Labor, Employment, Benefits + Immigration Group, where she represents employers in labor and employment matters. She focuses her practice on counseling private sector employers, including multinational corporations, health care organizations, educational institutions, and manufacturers, in all areas of employment law. Abby also defends employers in federal and state court and before administrative agencies. In addition to counseling and litigation, she provides workplace training for clients and conducts workplace investigations.

...

860.275.8215
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