Earlier today, the Occupational Safety and Health Administration (OSHA) announced that on January 26, 2022, it will be withdrawing its emergency temporary standard (ETS) mandating vaccination or weekly testing for certain employees of larger employers. The announcement comes almost two weeks after the U.S. Supreme Court reinstated a hold on the ETS while challenges to it played out at the Sixth Circuit Court of Appeals. The Supreme Court’s ruling was not a decision on the merits, so it was possible (but unlikely) that the Sixth Circuit could have found the ETS to be valid.
While OSHA’s announcement puts an end to the ETS and the underlying litigation for now, OSHA did signal that it was keeping open the option of re-introducing the ETS in some form at a later date. In particular, OSHA made this statement in its announcement withdrawing the ETS: “Although OSHA is withdrawing the Vaccination and Testing ETS as an enforceable emergency temporary standard, OSHA is not withdrawing the ETS to the extent that it serves as a proposed rule under section 6(c)(3) of the Act, and this action does not affect the ETS’s status as a proposal under section 6(b) of the Act or otherwise affect the status of the notice-and-comment rulemaking commenced by the Vaccination and Testing ETS. See 29 U.S.C. 655(c)(3).” Given the Supreme Court’s decision, it is unlikely that OSHA will seek to implement the original ETS as a permanent rule. However, OSHA may reintroduce a modified version of the ETS, which would then be subject to additional public comment and, quite likely, additional legal challenges.
We will continue to monitor OSHA’s activities relating to the vaccine/testing ETS, as well as any other guidance, ETS or final rules it may promulgate to address the COVID-19 pandemic or other workplace issues. If you have questions, please contact any member of Warner’s Labor and Employment Practice Group.