Running a business during the COVID-19 pandemic is difficult – and made even more so with the entry, stay, repeal, and revision of government-implemented regulations. On November 5, 2021, the Occupational Safety and Health Administration (“OSHA”) published an Emergency Temporary Standard (“ETS”) that employers with 100 or more employees (with some exceptions) must require COVID-19 vaccinations or regular testing and masks for its employees, among other things. (OSHA’s COVID–19 Vaccination and Testing; ETS, 86 Fed. Reg. 61402.) OSHA has withdrawn this ETS, effective as of January 26, 2022, following the U.S. Supreme Court’s (“Supreme Court”) stay. Nat’l Fed. of Independent Bus. v. Dep’t of Labor, OSHA, 595 U. S. ____ (2022), available at https:// www. supreme court .gov/ opinions/ 21pdf/ 21a244_hgci .pdf.
The story does not, however, end here. Contrary to public perception, the Supreme Court did not render OSHA powerless to issue regulations contemplating COVID-19 exposure in the workplace. It simply said that the ETS, as written, did not fall within OSHA’s authority to make workplace safety standards. Thus, the Supreme Court opined:
Where the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are plainly permissible. We do not doubt, for example, that OSHA could regulate researchers who work with the COVID–19 virus. So too could OSHA regulate risks associated with working in particularly crowded or cramped environments. But the danger present in such workplaces differs in both degree and kind from the everyday risk of contracting COVID–19 that all face. Nat’l Fed. of Independent Bus., 595 U. S. ____, available at https:// www. supreme court. gov/ opinions/ 21pdf/ 21a244_hgci .pdf, p.7.
So, while a stay exists, OSHA is maintaining the ETS as a proposed rule and is moving forward with issuing final standards for COVID-19 workplace safety. 29 CFR Part 1910, available at federalregister.gov/d/2022-01532.
Here in Illinois, businesses must also adhere to state-wide and local directives. There is a statewide indoor mask requirement, which is planned to end on February 28, 2022. County and other municipal public health departments also regulate in this arena. These regulations vary across the state.
What does this mean as a business owner? COVID-19 workplace safety measures are likely going to be here to stay. While OSHA continues its rule-making procedures, employers should be examining what measures they have already implemented, if any, and what else needs to be addressed. Employers should consider updating their employee handbooks to address safety protocols, issues surrounding mandatory and elective quarantines, work-from-home policies, and accommodation procedures.
COVID-19 employment policies, like any employment policy, require an analysis of an individual business along with applicable laws and regulations. The attorneys at Tomlinson & Shapiro and are ready to assist your company. Please contact us by calling 312-715-8770 or by filling out the form at https:// www. tomlinson shapiro .com/ contact/ to schedule a consultation.