OSHA withdraws vaccine ETS, but there may be more to come

Where does OSHA go now?

The Occupational Safety and Health Administration, I'm sure you've heard, officially withdrew its COVID-19 vaccination Emergency Temporary Standard, effective today.

No huge surprise, since the U.S. Supreme Court shot it down, at least provisionally (but see UPDATE at the end of this post), almost two weeks ago.

Although OSHA will no longer be enforcing the ETS, they are leaving it on the table as a proposed rule and "prioritizing" a "permanent COVID-19 Healthcare Standard" to apply in the workplace. Here is the OSHA announcement, posted on its website yesterday

Statement on the Status of the
OSHA COVID-19 Vaccination and Testing ETS

(January 25, 2022)

The U.S. Department of Labor’s Occupational Safety and Health Administration is withdrawing the vaccination and testing emergency temporary standard issued on Nov. 5, 2021, to protect unvaccinated employees of large employers with 100 or more employees from workplace exposure to coronavirus. The withdrawal is effective January 26, 2022.

Although OSHA is withdrawing the vaccination and testing ETS as an enforceable emergency temporary standard, the agency is not withdrawing the ETS as a proposed rule. The agency is prioritizing its resources to focus on finalizing a permanent COVID-19 Healthcare Standard.

OSHA strongly encourages vaccination of workers against the continuing dangers posed by COVID-19 in the workplace.

I wasn't sure what OSHA meant, but I consulted with two higher authorities -- our Workplace Safety practice group heads, Bill Principe and Pat Tyson. As they see it, OSHA is expected to issue a permanent standard specific to the health care industry in the next 6-9 months. It isn't entirely clear how that would mesh with the mandate already issued by the Centers for Medicare & Medicaid Services, which applies to many health care employers that receive Medicare or Medicaid funds. It's possible that the OSHA standard would supplement the CMS rule, perhaps by applying to health care employers who are not covered by the latter.

Bill also believes OSHA may, at some point, issue a proposed standard specific to the meatpacking and poultry industries.

UPDATE: OSHA has asked that the ETS litigation (NFIB v. U.S. Department of Labor) be dismissed, telling the U.S. Court of Appeals for the Sixth Circuit that the case is moot now that OSHA has withdrawn the ETS. The Supreme Court had sent the litigation back to the Sixth Circuit after it stayed the ETS on January 13.

We'll keep you posted.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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