Effective January 26, 2022, OSHA withdrew its enforcement of its COVID-19 Emergency Temporary Standard (ETS), which would have required many employers to mandate vaccination or regular testing for employees. As we have previously discussed, the ETS had undergone a number of legal challenges. Most recently the United States Supreme Court stayed the ETS and sent it back to the Sixth Circuit for full review on the merits. OSHA’s announcement that it will cease enforcement of the ETS will likely end this litigation.
Although OSHA is withdrawing the ETS as an enforceable emergency temporary standard, OSHA has not withdrawn the ETS as a proposed rule. This is significant because it will allow OSHA to expedite the rulemaking for a permanent COVID-19 rule under the Administrative Procedures Act. In the meantime, OSHA is prioritizing its resources to focus on finalizing a permanent COVID-19 Healthcare Standard and continues to “strongly encourage[s] vaccination of workers against the continuing dangers posed by COVID-19 in the workplace.”
While the ETS will not be enforced at this time, employers should investigate whether another federal, state, or local mandate may apply to them. If not, then they may choose to implement policies and practices they deem appropriate for the unique needs of their work environment. Of course, OSHA is continuing to enforce existing personal protective equipment, respiratory protection, and sanitization standards, as well as issue citations for recognized hazards (including COVID-19) under the General Duty Clause.