OSHA Withdraws Vaccine-or-Test Rule for Large Employers
- January 28, 2022
The Occupational Safety and Health Administration (OSHA) formally withdrew this week its vaccine-or test emergency temporary standard (ETS) for large employers following a Supreme Court decision that blocked enforcement of the ETS as challenges to the rule played out.
OSHA issued the standard on November 5, 2021, which required all businesses with 100 or more employees to ensure their workers were fully vaccinated or were tested on a weekly basis. But on January 13, the Supreme Court in a 6-3 decision, stayed the ETS after finding various business groups and Republican-led states challengers were likely to prevail on their arguments that OSHA lacked authority to impose the vaccine-or-test requirement. Nat’l Fed. of Indep. Bus. v. Dep’t of Labor, Nos. 21A244 and 21A247 (U.S. Jan. 13, 2022).
At the same time, a divided Court allowed the administration’s vaccine mandate for health care workers to take effect nationwide, finding the Centers for Medicare & Medicaid Services did not exceed its statutory authority in requiring facilities that participate in Medicare and Medicaid to ensure their workers are vaccinated. Biden v. Missouri, Nos. 21A240 and 21A241 (U.S. Jan. 13, 2022).
The withdrawal of the OSHA ETS is effective as of January 26 when notice was published in the Federal Register (87 Fed. Reg. 3928).
“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 said in a statement.
OSHA instead “is prioritizing its resources to focus on finalizing a permanent COVID-19 Healthcare Standard,” the statement said.
In December 2021, OSHA withdrew the non-recordkeeping portions of a separate ETS for protecting health care workers from COVID-19, saying it needed more time to issue a permanent rule.
OSHA issued the ETS in June 2021, which established new requirements for health care employers to safeguard their workers from COVID-19 infection. The standard, among other things, required covered employers to conduct a hazard assessment and have a written plan for mitigating the spread of the virus. The ETS also called for paid time off for health care workers to get vaccinated and to recover from any side effects.
Under the OSH Act, an ETS is effective until superseded by a permanent standard, which the statute requires within six months of the ETS’ promulgation. But the agency said it didn’t have enough time to issue a final standard within that timeframe.
The withdrawal prompted several national labor organizations and unions, including National Nurses United, to petition the D.C. Circuit asking it to order OSHA to issue a permanent standard to protect “the life and health of millions of nurses and other frontline health care workers throughout the United States in grave danger from the deadly Covid-19 pandemic” and to continue to enforce the ETS until a final rule is issued.
According to the petition, the failure to retain the existing ETS and to adopt a permanent rule violates the OSH Act. “[W]hen OSHA determines an emergency situation exists (as it did here) and issues an emergency standard, that emergency standard must stay in effect until a final rule is issued, which must be done within six months of publication of the emergency standard,” the petition argues.