Regulatory Outlook 2022: A Change in Priorities

ANALYSIS & COMMENTARY


In January 2022, the U.S. Supreme Court effectively struck down President Joe Biden’s COVID-19 vaccine-or-test mandate, which was to be enforced by the Occupational Safety and Health Administration (OSHA). In the wake of the High Court’s decision, OSHA may retreat somewhat from the headlines, but you can still expect the agency to exercise a major impact on how America’s employers manage their workforces this year.

While the Supreme Court’s ruling only dealt directly with lower appeals court injunctions, in order to maintain the stay blocking implementation, the six majority justices have found that those suing the government were likely to prevail on the merits of their case against the OSHA emergency temporary standard (ETS).

The 6 to 3 ruling may not have literally overturned the agency’s vaccine mandate, but you would have to be pretty foolish or wildly optimistic about changing the justices’ minds to pursue the case any further in the appeals court knowing what the result will be if it is again appealed to the same court. Most of the initial business and government reactions to the ruling view it this way.




We were not alone in seeing the writing on the wall. Effective Jan. 26, OSHA officially withdrew the ETS vaccine-or-test order for employers with 100 or more workers. However, Biden has called on businesses to voluntarily implement those requirements. Secretary of Labor Marty Walsh said OSHA will use its existing powers to protect workers from COVID-19, as OSHA can still investigate and fine employers for failure to maintain a safe workplace.

The justices’ decision hewed fairly closely to what we had predicted after Chief Justice John Roberts scheduled the Jan. 7 hearing back in December, including the view that OSHA had overreached its authority by following Biden’s order to issue an ETS instead of adhering to formal rulemaking procedures as required by federal law for such a sweeping rule that would have applied to 84 million Americans.

By a 5-4 margin, the court upheld a similar mandate issued by the Centers for Medicare and Medicaid Services (CMS) requiring approximately 76,000 healthcare facilities that accept federal money, including hospitals and long-term care, vaccinate their more than 10.3 million workers. Roberts and Associate Justice Brett Kavanaugh joined the three liberal justices in upholding that program.

The justices determined the CMS enabling statutes give the agency the authority to develop health standards for those participating in the programs it supervises.

Before the Supreme Court vaccine decision was issued, OSHA announced the end of its COVID-19 ETS for healthcare workers, which was adopted last June under a separate executive order Biden signed on Jan. 21, 2021, the day after his inauguration. Because any ETS order can last only six months unless renewed by the agency, the announcement was redundant except to lay out how the agency intends to pursue the same requirements in the future.

In the process of ending the ETS requirement for healthcare workers, OSHA made a point of stating that it will continue to enforce aspects of the standard—including employer recordkeeping requirements—under the authority of the OSHA’s general duty clause while it continues working on a permanent rule to replace the ETS.

You can also expect that OSHA and other federal agencies that regulate employers will persist in pressing forward with other hot-button issues on the Biden administration’s regulatory agenda, including those they initiated in 2021 before COVID-19 policy seemed to overwhelm other priorities.

As of press time, COVID-19 cases were surging across the United States and the world due to the highly contagious Omicron and Delta variants. The impact has been felt throughout the supply chain and other sectors of the economy where staff shortages are arising everywhere following the virus’s rapid spread.

Workforce numbers have plummeted due to the advancing illness and quarantine requirements keeping many employees home for anywhere from five to 14 days. This also has been blamed for the sustained supply chain crisis by thinning the ranks of trucking, airline and port workers, among others.

COVID-19 obviously has become a continuing crisis that federal, state and local governments will have to grapple with for years to come. Keep in mind that vaccine mandates other than federal OSHA’s still survive where private and government employers have imposed them. Some states and cities, most recently New York City, also are enforcing their own vaccine requirements for employers.

Where OSHA Is Heading


In other areas where OSHA is active, life goes on. There will be plenty to deal with in what is already proving to be an eventful year—not the least because of a momentous mid-term election this November, which could scupper Biden’s ambitious legislative agenda. That agenda was already bruised and battered in 2021 and the early days of this year, when several of his major pieces of ambitious legislation, including the Build Back Better Act and Voting Rights Bill, stalled in the split Senate.

Last year, OSHA found its limited staff resources stretched thin under pressure exerted by the demands of its responsibility for creating and enforcing not one, but two, COVID-19 ETS rules issued under direct order from Biden.

OSHA is a division of the U.S. Department of Labor and is headed by the Assistant Secretary of Labor for Occupational Safety and Health. Douglas L. Parker assumed that position after being sworn in Nov. 5, 2021. An attorney by trade, Parker previously served as the chief of the California Division of Occupational Safety and Health (Cal/OSHA), and as deputy assistant secretary for policy for Mine Safety and Health Administration (MSHA) in the Obama administration.

Following news of his nomination, other lawyers described Parker as being “consistently focused on the advancement of three priorities: Democratic Party politics, organized labor and occupational safety and health.” Given his background, he can be expected to be a loyal foot soldier in Biden’s bureaucratic army.


SOURCE:

https://www.ehstoday.com/osha-enforcement/article/21214860/regulatory-outlook-2022-a-change-in-priorities