Our Blog has been monitoring the ETS that OSHA issued in November 2021 that mandated employers of 100 or more employees to require their employees to obtain COVID-19 vaccinations or undergo regular COVID-19 testing instead. We have kept you informed as this ETS made its way through the courts. First, implementation of the ETS was stayed by the Fifth Circuit Court of Appeals (see blog on 11/18/2021), then the stay was lifted by the Sixth Circuit Court of Appeals (see blog on 12/20/2021), and finally, argument was held before the U.S. Supreme Court, which ordered that the stay be put back in place after a majority of the Court found that OSHA had exceeded its authority in issuing the ETS (see blog on 12/23/2021 and blog on 1/13/2022). (Please note the Court let stand the Biden Administration’s vaccine mandate for certain healthcare workers.)
On January 25, 2022, OSHA announced that it was withdrawing the ETS with an effective date of January 26, 2022. It is likely that OSHA made this decision to avoid further litigation on the ETS in the lower courts (with a possible return to the U.S. Supreme Court at a later date). In announcing its withdrawal of the ETS, OSHA clarified that it was “withdrawing the vaccination and testing ETS as an enforceable emergency temporary standard” but noted that “the agency is not withdrawing the ETS as a proposed rule.” OSHA concluded the statement by “strongly” encouraging employees to receive their vaccinations “against the continuing dangers posed by COVID-19 in the workplace.”
It is possible but unlikely that OSHA will try to implement the ETS as a permanent rule in substantially the same form given the U.S. Supreme Court’s ruling. More likely, if it doesn’t scrap the rule entirely, OSHA may seek to modify the proposed rule to target certain industries and/or workplace environments. One of the Supreme Court majority’s criticisms of the ETS was that it applied too broadly to all employers of more than 100 employees regardless of the type of worksite, i.e., indoors vs. outdoors, or type of work being performed.
Although the vaccine or test mandate appears dead for now, employers are reminded that they may be subject to similar mandates by their state or local authorities despite the withdrawal of the ETS by the federal OSHA. Employers should also continue to monitor developments on this issue in case the federal OSHA seeks to implement new rules or standards regarding COVID-19 vaccination or testing. Of course, this Blog will continue to monitor these developments as well.