The U.S. Department of Labor has withdrawn its emergency temporary standard requiring COVID-19 vaccination or testing for workers at large employers. However, OSHA will continue to pursue a permanent standard to that effect, according to a Federal Register notice issued January 26, 2022.
On November 5, 2021, OSHA adopted an emergency temporary standard (the Vaccination and Testing ETS), to protect unvaccinated employees of large employers (100 or more employees) from the risk of contracting COVID-19 by strongly encouraging vaccination. The Vaccination and Testing ETS required covered employers to develop, implement and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead adopted a policy requiring employees to either get vaccinated or elect to undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination. That ETS also serves as a “proposed rule” for a “proceeding” to promote and implement an occupational safety or health standard.
On January 13, 2022, the U.S. Supreme Court stayed the Vaccination and Testing ETS, finding that challengers were likely to prevail on their claims. After evaluating the Court’s decision, OSHA has withdrawn the Vaccination and Testing ETS as an enforceable emergency temporary standard. To the extent that this withdrawal is not already generally exempt from the notice and comment requirements of the Administrative Procedure Act and the OSH Act, OSHA finds good cause that the opportunity for public comment on this withdrawal is impossible to carry out, unnecessary and contrary to the public interest because it would unnecessarily delay the resolution of ambiguity for employers and workers alike.
Although OSHA is withdrawing the Vaccination and Testing ETS as an enforceable emergency temporary standard, OSHA is not withdrawing the ETS to the extent that it serves as a proposed rule. Notwithstanding the withdrawal of the Vaccination and Testing ETS, OSHA continues to strongly encourage the vaccination of workers against the continuing dangers posed by COVID-19 in the workplace.