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January 25, 2022
OSHA withdrawing vaccine-or-test ETS

The Occupational Safety and Health Administration (OSHA) is withdrawing its November 5, 2021, emergency temporary standard (ETS) requiring employers with 100 or more employees to implement a program of COVID-19 vaccination or regular testing and face coverings to protect unvaccinated workers. The withdrawal becomes effective with publication in the Federal Register scheduled for January 26.

On January 13, the U.S. Supreme Court issued a stay of the ETS, concluding that the petitioners in Nat. Fed’n of Indep. Bus. v. Dept. of Labor and Ohio v. Dept. of Labor likely will prevail in securing an injunction.

However, the emergency rule now becomes a proposed rule. While the agency is withdrawing the enforceable ETS, it is pursuing a rulemaking for a permanent occupational safety and health standard.

Emergency rule’s journey

On September 9, 2021, the White House unveiled a national strategy to combat the ongoing COVID-19 pandemic. The strategy included the OSHA vaccination-or-testing ETS, along with Executive Orders for vaccination of federal employees and contractors and a Centers for Medicare and Medicaid Services rule for vaccination of workers in healthcare facilities that receive federal Medicare and Medicaid funds.

On November 5, OSHA issued its ETS. In addition to a requirement for a written COVID-19 prevention program, the ETS required employers to determine the vaccination status of each employee and maintain records and a roster of each employee’s vaccination status. It did not require employers to pay for testing but did require employers to provide leave for vaccination and recovery from vaccine side effects.

Employer groups and states’ attorneys general immediately sought an injunction in federal courts.

On November 12, the emergency rule was indefinitely stayed by the U.S. Court of Appeals for the 5th Circuit in New Orleans. The three-judge panel at the 5th Circuit appeals court suggested that the White House “pored over the U.S. Code in search of authority, or a ‘work-around,’ for imposing a national vaccine mandate. The vehicle it landed on was an OSHA ETS.”

Lawsuits challenging the ETS then were consolidated and moved to the 6th Circuit appeals court in Cincinnati.

On December 17, the U.S. Court of Appeals for the 6th Circuit lifted the stay issued by the 5th Circuit appeals court.

When the Supreme Court heard oral arguments from the government and petitioners on January 7, Chief Justice John G. Roberts questioned whether Congress should have weighed in on federal vaccination and testing requirements. Justice Neil Gorsuch also questioned whether decisions about vaccination requirements belonged with Congress and the states rather than a federal regulatory agency.

Gorsuch pointed out that, over the course of the COVID-19 pandemic, Congress had not directed OSHA to issue its vaccination-or-testing emergency rule. Like the judges in the 5th Circuit Court of Appeals, Gorsuch speculated that the White House and Department of Labor pursued an OSHA ETS as a legislative “work-around.”

On December 27, 2021, the agency announced the withdrawal of portions of its COVID-19 ETS for healthcare facilities and healthcare support services. The rule’s COVID-19 log and reporting requirements, issued as part of an interim final rule, remain in effect.

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