As controversy, and litigation, continue to swirl around its implementation, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has elected to extend the comment period for the COVID-19 vaccination and testing emergency temporary standard (ETS) that was announced early this month. According to the agency, the comment period was extended by 45 days to January 19, 2022, to allow stakeholders additional time to review the ETS and collect information and data necessary for comment.
The ETS was issued on November 5th as a measure to protect workers against the spread of the coronavirus in the workplace. It covers employers with 100 or more employees and requires them to “develop, implement and enforce a mandatory COVID-19 vaccination policy, unless they adopt a policy requiring employees to either get vaccinated or undergo regular COVID-19 testing and wear a face covering at work.”
Shortly after the ETS was announced, it was challenged in a lawsuit by several private companies and other groups, resulting in a stay of enforcement pending judicial review. According to the ETS website, the Department of Labor has subsequently filed a motion to lift the stay, noting: “While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.”
In another setback for the Biden administration, on November 29, the New York Times reported that a federal judge temporarily blocked a vaccine mandate for health care workers in 10 states that had filed a lawsuit against the federal government. In his ruling, the judge cited the plaintiff’s argument that the Centers for Medicare and Medicaid Services, which issued the mandate for all health care workers in Medicare- and Medicaid-certified medical facilities receiving government funding, had not been granted the necessary Congressional authority to do so.
While litigation for both continues, the comment period on the COVID-19 vaccination and testing ETS remains active and separate from the litigation. Written comments on any aspect of the ETS must be submitted by January 19, and should be identified by Docket No. OSHA-2021-0007. They can be submitted electronically at https://www.regulations.gov, which is the Federal e-Rulemaking Portal. Read the Nov. 5, 2021 Federal Register notice for more details.
Information provided by OSHA and edited/enhanced by Becky Schultz.
