On January 25, the Occupational Safety and Health Administration (“OSHA”) formally withdrew its Emergency Temporary Standard (“ETS”) on vaccinations, testing, and face coverings for large employers. This decision follows the Supreme Court’s January 13 order blocking enforcement of the ETS. While the Supreme Court’s action technically only stayed enforcement of the ETS pending further proceedings in the lower courts, the Court’s written opinion made clear that a majority of the Justices believe that OSHA had exceeded its Congressionally-granted authority to promulgate regulations to promote workplace safety. This was widely viewed as a death knell for the ETS.
The ETS would have required employers with 100 or more employees to adopt and enforce policies requiring that employees be vaccinated against COVID-19, or undergo weekly testing and wear a face covering while at work.
In a statement announcing the withdrawal of the ETS, OSHA stated that it is prioritizing its resources to focus on finalizing a permanent COVID-19 Healthcare Standard, and that it continues to strongly encourage vaccination of all workers.
The withdrawal of the ETS may not be the last employers hear about an OSHA rule on vaccinations. OSHA’s announcement of the ETS in September also operated as a notice of a proposed permanent rule. OSHA’s withdrawal of the ETS does not affect the formal rule making process, leaving open the possibility, although remote, that OSHA may move ahead with formal rulemaking on vaccines and testing. Employers will want to continue to monitor these developments.