The Occupational Safety and Health Administration (OSHA) is withdrawing its COVID-19 vaccination or testing rule that previously applied to large employers. The withdrawal follows the U.S. Supreme Court’s January 13 decision preventing OSHA from enforcing the rule. In that 6-3 decision, the Court reinstated an injunction previously lifted by the Sixth Circuit Court of Appeals. The Supreme Court held the rule’s challengers would likely prevail on the merits.
OSHA implemented the vaccination and testing ETS on November 5, 2021. The ETS covered employers with 100 or more employees and included a mandate that they either require their employees to be fully vaccinated against COVID-19 or be tested weekly for the virus and wear face coverings when working indoors.
On January 25, OSHA posted the notice of withdrawal on its website - a day ahead of its January 26 publication in the Federal Register. Also on January 25, OSHA filed a motion with Sixth Circuit asking the court to dismiss the pending legal challenges, stating its withdrawal of the ETS as a temporary standard renders the challenges moot. The motion states: “the Vaccination and Testing ETS’s requirements, which are currently stayed, will no longer be in effect, and petitioners will no longer be subject – or face any risk of being subject – to the challenged requirements from which they sought relief.”
While announcing the withdrawal of the ETS as a “binding rule,” OSHA’s motion, its official notice of withdrawal, and its website all state the agency is not withdrawing the ETS as a “proposed rule.” In the Sixth Circuit motion, OSHA stated that “it has left the proposed rule in place as part of a separate, ongoing rulemaking process that imposes no obligations and is not subject to challenge.” This could potentially lead to OSHA issuing a final rule including a permanent standard narrower in scope than the now-defunct vaccination and testing ETS. For example, OSHA’s website states the agency is now “prioritizing its resources to focus on finalizing a permanent COVID-19 Healthcare Standard.” If successful, this would replace OSHA’s Healthcare Emergency Temporary Standard that, except for certain record-keeping provisions, expired on December 27, 2021. The Supreme Court’s January 13 decision indicated OSHA could lawfully issue COVID-19 standards addressing “occupation-specific” hazards.
If you have any questions about the issues discussed in this Alert, please contact the author, Michael Prendergast, partner in our Jacksonville office and member of FordHarrison’s Coronavirus Taskforce at mprendergast@fordharrison.com. Of course, you can also contact the FordHarrison attorney with whom you usually work.