OSHA Announces Withdrawal of Large Employer Vaccination and Testing ETS

Kollman & Saucier
Kollman & Saucier

As our Garrett Wozniak wrote on January 13, 2022, the United States Supreme Court stayed implementation of the Occupational Safety and Health Administration’s (“OSHA”) vaccination or test Emergency Temporary Standard (“ETS”)  for large employers (100 or more employees).  The stay effectively ended the ability for OSHA to implement this ETS, as the Supreme Court ruled that the stay would remain in effect following a final decision from the Sixth Circuit and any appeal that follows (by law, OSHA’s ETS standards expire after six months).

Recognizing that pursuing the case in the Sixth Circuit would be an exercise in futility, on January 25, 2022, OSHA announced that it would withdraw the large employer ETS.  The withdrawal of the emergency rule is effective January 26, 2022.  While the withdrawal eliminates an OSHA vax-or-test mandate , employers of any size may still choose to implement COVID-19 safeguards, including mandatory vaccination policies.  If a business chooses to implement such a requirement and/or practice, it must ensure the requirement is consistent with the laws requiring reasonable accommodations (i.e. the Americans with Disabilities Act and Title VII of the Civil Rights Act of 1964).

OSHA will continue to focus on issuing a final rule to replace the Healthcare ETS it previously issued on June 21, 2021.  OSHA’s healthcare ETS required certain healthcare employers to provide paid leave to employees affected by COVID-19, and also set requirements regarding masking, monitoring, and record keeping.

On December 27, 2021, OSHA announced it would not meet the 6-month timeline to issue a permanent rule to replace the healthcare ETS and removed all portions of the ETS that were not related to record keeping.  However, on January 25, 2022, OSHA announced that the “agency is prioritizing its resources to focus on finalizing a permanent COVID-19 Healthcare Standard.”  Given the Supreme Court’s decision in Biden v. Missouri, Nos. 21A240 and 21A241 (Jan. 13, 2022) upholding CMS’s vax-or-test ETS regarding healthcare workers, OSHA’s final rule may have a better opportunity to pass Supreme Court muster than the agency’s vaccination or test ETS.




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