OSHA ETS shut down by SCOTUS; COVID tests covered; Form 300A posting due February 1st

Busy second week of the newsletter. Thank you all for reading!

Supreme Court rules Stay on OSHA ETS

DECISION REACTION WITH

JEN PINKHAM

On Jan. 13, 2022, the Supreme Court of the United States (SCOTUS) ruled to stay the Occupational Safety and Health Administration’s (OSHA) vaccination and testing emergency temporary standard (ETS). The ETS was developed to establish a mandatory vaccination policy requirement for private employers with 100 or more employees.?

FULL SCOTUS OSHA ETS DECISION

SCOTUS Reasoning

In its published decision, SCOTUS stated that OSHA was not given the power to regulate public health more broadly than occupational dangers. In addition, SCOTUS explained that challenges to the ETS were likely to succeed on the merits because the agency lacks the authority to impose the mandate. Specifically, the OSH Act only allows the agency to set workplace safety standards, not broad public health measures.

Finally, the court argues that the requirement that employees either become vaccinated or undergo weekly testing is not an exercise of federal power. Instead, SCOTUS stated the ETS represents a “significant encroachment into the lives—and health—of a vast number of employees.”

Impact on Employers

Given this new stay, employers are not required to comply with the OSHA ETS vaccination and testing mandate at this time. However, because the case has been sent back to the 6th Circuit, employers will need to continue monitoring legal developments to learn about a final decision on the ETS.

COVID tests covered by Commercial Insurers

Starting Jan. 15, 2022, commercial insurers are required to cover the costs of FDA-authorized, rapid, at-home COVID tests for commercial members for the duration of the public health emergency, in accordance with the Biden Administration’s new guidance.

In line with the guidance, up to eight over-the-counter at-home tests per commercial member per month will be covered without any cost-share and without any need for prior clinical assessment. Under Biden administration guidance, the coverage applies to all commercial members, but does not apply to Medicare members.

Stay tuned for more information on this as it becomes available.

Osha Form 300A posting requirement starts February 1

The Occupational Safety and Health Administration (OSHA) requires employers subject to its recordkeeping requirements to post copies of their OSHA Form 300A between Feb. 1 and April 30 of each year.

The OSHA Form 300A, also known as the “Summary of Work-related Injuries and Illnesses,” must be completed by Feb. 1 using data from the previous calendar year.?

As a reminder, OSHA’s recordkeeping requirement does not apply to employers with 10 or fewer employees, or to employers that are in a partially exempt industry.

Severe Injury Reporting

Employers must report any worker fatality within eight hours and any amputation, loss of an eye or hospitalization of a worker within 24 hours. For all COVID-19 related illnesses the emergency temporary standard provides the reporting time frames for when to report a death or inpatient hospitalization.

Employer Action Steps

On Feb. 1, employers subject to OSHA recordkeeping requirements must ensure that copies of their completed Forms 300A are posted in each of their establishments. The form must be displayed in a conspicuous place or places where notices to employees are customarily posted.

Until April 30, these employers must also ensure that their Form 300A postings remain in place and are not altered, defaced or covered by other material.