As was anticipated by many, on Tuesday, January 25, the U.S. Occupational Safety and Health Administration (OSHA) announced the withdrawal of its November 2021 “Emergency Temporary Standard” (ETS) that would have required private sector US employers with 100 or more employees to either mandate COVID-19 vaccinations for their employees or require them to comply with weekly COVID-19 testing and face covering requirements. On January 13, 2022, the U.S. Supreme Court stayed enforcement of the ETS, finding that those parties challenging it were likely to succeed, and sent the matter back to a lower federal appellate court for review on the merits of the parties’ arguments. (See our post here.) More importantly, however, in issuing its order staying enforcement of the ETS, the Supreme Court majority sent a clear signal to OSHA and the Biden Administration that it believed that OSHA may well have exceeded its authority in issuing a broad vaccination-or-testing requirement that would impact nearly 90 million US employees under the auspices of its authority to regulate workplace safety. Tacitly acknowledging that further litigation was unlikely to be successful, OSHA decided to withdraw the ETS.
Although the ETS is now officially no more, the notice issued by OSHA withdrawing it did note that it was not withdrawing the ETS to the extent it serves as a proposed rule under the rulemaking provisions of the Occupational Safety and Health Act (OSH Act). That means that OSHA may still pursue some form of rule requiring employers to mandate vaccination or testing, but the process for any such rule will follow the ordinary rulemaking notice-and-comment process, rather than the expedited emergency process OSHA employed in implementing the now-withdrawn ETS. It is additionally possible that OSHA may attempt to impose ETS-like requirements on a smaller scale, targeted at specific industries, but that remains to be seen. For now, employers that were to be covered by the ETS no longer need to plan for the possibility of its applicability or enforcement; however, all employers must continue to take appropriate, reasonable COVID-19 workplace infection control and mitigation measures consistent with the General Duty Clause in the OSH Act, which requires that employers provide their employees with a working environment “free from recognized hazards that are causing or are likely to cause death or serious physical harm.”