The Occupational Safety and Health Administration officially withdrew its COVID-19 vaccination Emergency Temporary Standard, effective today.

The government has also 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of Labor) be dismissed, telling the U.S. Court of Appeals for the Sixth Circuit that the case is moot now that OSHA has withdrawn the ETS.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 when it stayed the ETS on January 13.

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

STATEMENT ON THE STATUS OF THEOSHA 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.

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.

But it is possible that such a permanent OSHA Health Care Vaccination Standard would be preempted for workplaces already being regulated under the CMS rule. Section 4(b)(1) of the OSH Act has a provision that is intended to prevent duplication of efforts to ensure safety in the workplace:

Nothing in this Act shall apply to working conditions with respect to which other Federal agencies . . . exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety and health.

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

We will continue to monitor developments in this area and keep you up to date.

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