On June 21, 2022, the Department of Labor released the Spring 2022 rulemaking agenda. The dates listed on the schedule are non-binding but reflect priority issues for OSHA.

The newly published agenda makes clear that the much-anticipated heat illness rules remain at the “pre-rule” stage, and it is unclear when the agency will publish proposed rules related to the same. Similarly, rules related to the prevention of workplace violence in health care and social assistance remain delayed, with the current schedule showing a Small Business Regulatory Enforcement Fairness Act review in September 2022.

The short answer is the proverbial attorney response, “it depends.” Under OSHA’s multi-employer citation policy, an employer may be held responsible for the violations of other employers where it could reasonably be expected to prevent or detect and abate the violations due to its supervisory authority and control over the worksite. In Secretary of Labor v. Summit Contracting Group, OSHRC Docket No. 18-1451 (May 10, 2022), the two-member Commission determined that the 11th Circuit has never explicitly adopted or rejected the multi-employer doctrine, and thus applied Commission precedent to the circumstances of the case. After doing so, the Commission ultimately reversed the administrative law judge’s decision and vacated a fall protection citation issued against a general contractor for the failure of its subcontractor’s employees to use fall protection.

On December 27, OSHA announced it is allowing its ETS for healthcare facilities to sunset but that it would continue to work expeditiously to promulgate a permanent standard for coronavirus-related hazards.  In its statement, OSHA formally withdrew the non-recordkeeping portions of the ETS, however, stated that the recordkeeping requirements for employers covered under that separate rule which require them to maintain logs of all employee COVID cases regardless of whether they are considered work-related or not would remain in effect.  In addition, healthcare facilities must continue to affirmatively report COVID work-related inpatient hospitalizations within 24 hours and fatalities within 8 hours. 

Last night, the Sixth Circuit lifted the Fifth Circuit’s national stay on OSHA’s general duty COVID ETS. Shortly thereafter, OSHA issued information to employers stating it would exercise enforcement discretion and not issue citations for noncompliance with any ETS requirement before January 10, 2022 and would not issue citations for noncompliance with the testing requirements before February 9, 2022 provided employers are exercising reasonable, good faith efforts to come into compliance.

Not surprisingly, a petition has now also been filed with the U.S. Supreme Court.

The roller coaster ride continues.