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OSHA and the Texas Employer

The Occupational Safety and Health Administration (OSHA) operates under the Department of Labor. Its purported mission is to ensure safe and healthful working conditions for workers by setting and enforcing standards and by providing training, outreach, education, and assistance.

Texas is under federal OSHA jurisdiction which covers most private-sector workers within Texas. In Texas, state and local government workers are not covered by federal OSHA. OSHA’s protection applies to all federal agencies. Federal agencies must have a safety and health program that meet the same standards as private employers.

Under the Occupational Safety and Health Act of 1970, employers have a responsibility to provide a safe workplace. Entities not covered by the Act are self-employed workers, immediate family members of farm employers, and workers whose hazards are regulated by another federal agency. Among the many employer responsibilities under the Act, are providing a workplace free from serious recognized hazards and comply with standards, rules, and regulations issued under the Act to establish or update operating procedures and communicate them so that employees follow safety and health requirements. An employee or her representative has the right to file a safety and health complaint and request an OSHA inspection of the workplace if the employee believes the employer is not following OSHA standards. An employee also has the right to file a whistleblower complaint with OSHA if the employee believes she was retaliated against for exercising her rights as an employee. OSHA enforces several federal whistleblower protection laws.

Effective January 26, 2022, OSHA withdrew the enforcement of its Emergency Temporary Standard (ETS.) The ETS required employers with 100 or more employees to mandate COVID-19 vaccines or weekly tests for their employees to enter the place of employment. The withdrawal of enforcement is not unexpected as the U.S. Supreme Court granted a temporary stay of the ETS on January 13, 2022. OSHA has informed the public that its focus is to develop permanent rules and regulations regarding employer standards for COVID-19 rather than enforcement of the ETS. For example, many OSHA standards already require employers to provide PPE or personal protective equipment when it is necessary to protect employees from job-related injury or illness.

The law surrounding vaccine requirements is currently being litigated in the court system and is a topic that all employers should continue to be informed of at the federal and state level. The Texas governor has implemented the following orders regarding vaccination:

1. Texas Governor GA-38 Executive Order: July 29, 2021:
Any public or private entity that is receiving or will receive public funds shall not require consumers to provide, as a condition of receiving any service or entering any place, documentation regarding the consumer’s vaccination status for any COVID-19 vaccine administered under an emergency use authorization.

2. Texas Governor GA-40 Executive Order:  October 11, 2021:
No entity in Texas can compel receipt of COVID-19 vaccine by any individual, including an employee or a consumer, who objects to such vaccination for any reason of personal conscience, based on a religious belief, or for medical reasons, including prior recovery from COVID-19. I hereby suspend all relevant statutes to the extent necessary to enforce this prohibition.

GA-40 claims that pursuant to Texas Government Code Sec. 418.173, a fine of up to $1000 may be issued to violators of GA-40, but no jail time. Though it is not specified in the order who is responsible for enforcement, the Texas Workforce Commission (TWC) issued a letter to Texas employers that states that employees can report violations of GA-40 to TWC. Moderna and Pfizer are no longer emergency use vaccines but there is no change of policy currently regarding the above mandate. Private employers are allowed to make policies for their workforce and that would include requiring vaccines. However, an employer should be aware that if challenged, it is likely to be more successful if a vaccine requirement contains exceptions based on personal beliefs and/or medical conditions.

OSHA’s position has maintained that federal regulations will trump any state mandate. Also, employers should be aware that the responsibility to have a safe working environment will always be enforced by OSHA, even while OSHA currently works to finalize permanent COVID 19 standard regulations. The General Duty Clause addresses recognized hazards in the workplace and COVID -19 is considered by OSHA to be a recognized hazard. OSHA continues to have the authority to investigate and fine employers if they fail to maintain a safe environment for workers.

Therefore, it is in the best interest of the employer to maintain a consistent, written, COVID-19 policy and practice to provide a safe environment for workers. For example:

  1. Facilitate employees getting vaccinated. In addition to encouraging employers to give time off to employees to get vaccinated and recover from side effects, OSHA encourages employers to require vaccination or to undergo regular COVID-19 testing in addition to mask-wearing and physical distancing if they remain unvaccinated.
  2. Instruct any workers who are infected, unvaccinated workers who have had close contact with someone who tested positive for COVID-19, and all workers with COVID-19 symptoms to stay home from work. OSHA also suggests that employers remove policies that encourage an employee to come to work sick.
  3. Implement physical distancing in all communal work areas for any unvaccinated and otherwise at-risk workers.

(Source: United States Department of Labor)

By Sonya Garcia