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OSHA Emergency Temporary
Standards
In January, the U.S. Supreme Court blocked OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS), which required employers with 100 or more employees to develop, implement, and enforce a mandatory COVID-19 vaccination policy. Under the Occupational Safety and Health Act, OSHA can issue emergency temporary standards if the agency determines that employees face “grave danger” from exposures at work and that an emergency standard is necessary to protect workers from these exposures. OSHA has issued emergency temporary standards sparingly since the agency was created in 1971. Information about these standards appears below. To read about the recent Supreme Court decision, see NewsWatch.
From “Analysis: OSHA Emergency COVID Rule Imminent, but Vulnerable”:
“Such emergency rules are rare—and they are intended to be rare. [. . .] Rarer still is an emergency temporary standard that survives a legal challenge. Courts have been reluctant to allow OSHA to bypass the rulemaking process, some likening the process to agency-created legislation.”
SOURCES
Bloomberg Law: “Analysis: OSHA Emergency COVID Rule Imminent, but Vulnerable” (April 2021).
Boston College Environmental Affairs Law Review: “Substantive and Procedural Obstacles to OSHA Rulemaking: Reproductive Hazards as an Example” (PDF, August 1985).
Congressional Research Service: “Occupational Safety and Health Administration (OSHA): COVID-19 Emergency Temporary Standards (ETS) on Health Care Employment and Vaccinations and Testing for Large Employers” (PDF, January 2022).
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