Effective Wednesday, January 26, the Occupational Safety and Health Administration (OSHA) is withdrawing its COVID-19 emergency temporary standard (ETS), which would have mandated vaccination or weekly testing/masking requirements for employers with 100 or more employees. After the U.S. Supreme Court last week found the ETS to be an unconstitutional exercise of power and stayed the implementation of the mandate, presumably OSHA elected to withdraw the rule rather than wait for the U.S. 6th Circuit Court of Appeals to decide the case unfavorably for the agency and the Biden administration on the merits.
Agency Working Expeditiously on New Rule
Although OSHA is withdrawing the vaccine-or-test mandate as an enforceable temporary standard, it is now focusing on a permanent COVID-19 healthcare standard and treating the ETS as a proposed rule. Because the agency will review comments submitted during the rulemaking process, employers, trade associations, and business groups should definitely weigh in on the impact a permanent vax-or-test healthcare standard would have on their organizations.
State and local government vaccination and testing requirements aren’t affected by OSHA’s withdrawal of the ETS. Therefore, employers must continue to comply with their rules.
Despite withdrawing the vaccination and testing ETS, OSHA continues to strongly encourage workers to be vaccinated against COVID-19 and require every employer to take all appropriate and recommended safety and health measures to prevent its spread at work. The agency also plans to “vigorously enforce” the general duty clause in the Occupational Safety and Health Act.
Kirk Turner is an attorney with McAfee & Taft in its Tulsa, Oklahoma, office. You can reach him at kirk.turner@mcafeetaft.com.