DOL Will Argue the OSHA ETS is NOT a Vaccine Mandate on Friday, January 7th, 2022

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  • DOL Will Argue the OSHA ETS is NOT a Vaccine Mandate on Friday, January 7th, 2022


Hey Compliance Warriors!


As we all sit and wait for a Yay or Nay on the January 10th implementation of the OSHA Vax or Test ETS, a little insight into the argument that OSHA will make in defense of the new temporary regs. The Solicitor General has filed a brief outlining the arguments to be made in support of lifting the stay and going full steam ahead with the controversial new regs.


Basically, the argument for the ETS is that this is not a requirement to vaccinate all workers. That requirement would be left to the employer. OSHA only seeks to secure the health and safety of workers by requiring a policy and procedure to monitor COVID exposures and potential outbreaks in the workplace. They will argue that unvaccinated people are likely to have a worse outcome from a COVID infection than someone who has been vaccinated and contracts COVID. Therefore, the goal here is to keep all workers safe by catching infections early which will ultimately provide greater protection to all workers – vaccinated or not.


Further, the US Government will point out that the Occupational Safety and Health Act of 1970 (the OSH Act) says OSHA “shall” issue an ETS when the agency “determines” that an ETS is “necessary” to protect employees from a “grave danger” resulting from, among other things, exposure to “physically harmful” “agents” or “new hazards.”


Along this line of thinking, OSHA will argue:

  • COVID-19 is both a physically harmful agent and a new hazard;
  • exposure to that potentially deadly virus in the workplace presents a grave danger to unvaccinated employees who are at most significant risk of contracting and spreading the virus at work and suffering serious health consequences as a result; and
  • the ETS is necessary to protect those employees from the danger of contracting COVID-19 at work.

Additionally, OSHA  says “immunization” may be “authorize[d] or require[d]” … “where such is necessary for the protection of the health or safety of others.”


So, there ya go! A sneak peek into the argument for the ETS that will be presented to SCOTUS on Friday. Whether you are for or against the Vax or Test ETS, we all must realize that the argument DOL will make is pretty sound and may be just the thing that tips the scales in the eyes of SCOTUS.


Are you ready to implement the ETS on Monday morning if the stay is lifted? If not, reach out to support@HelpDeskforHR.com. We will be very glad to set you on the path to compliance.


Stay tuned! Your Breaking News on the subject will be right here at HelpDeskforHR.com.


Be Audit-Secure™



Lisa Smith, SPHR, SHRM – SCP

Certified EEO Investigator (EEOC)

Lead Support and Content Chief – HelpDeskforHR.com

“You cannot be audit-proof, but you can Be Audit-Secure.”


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