OSHA WITHDRAWS ITS COVID VACCINE MANDATE FOR LARGE EMPLOYERS
February 1, 2022
On January 25, 2022, the Occupational Safety and Health Administration (“OSHA”) published a notice in the Federal Register announcing that it would withdraw its Emergency Temporary Standard (“ETS”), which mandated that all U.S. employers with 100 employees or more require that their employees be fully vaccinated against COVID-19 or wear facemasks and submit to weekly testing. OSHA’s withdrawal of the ETS comes after months of ongoing litigation and the U.S. Supreme Court’s (“SCOTUS”) stay of the ETS.
On January 13, 2022, SCOTUS essentially blocked the vaccine mandate from going into effect when it issued its opinion staying the ETS. Specifically, SCOTUS found that the stay was appropriate because the Secretary of Labor did not have the authority to impose the mandate on U.S. employers. In its notice, OSHA cited SCOTUS’s decision as the main reason for its official withdrawal of the ETS.
OSHA also indicated that although it was withdrawing the ETS as an enforceable emergency temporary standard, it was not withdrawing the ETS to the extent it serves as a proposed rule under section 6(c)(3) of the OSH Act, and that its withdrawal of the ETS does not change the status of the notice and comment rulemaking that it previously issued. OSHA also stated that the change does not currently affect state-run OSHA plans, which are not required to take any action in response to withdrawal of the ETS. This is because the occupational safety and health programs that are run by the 28 states and U.S. territories that have them are required to be OSHA approved and be at least as effective as Federal OSHA’s program. This includes a requirement that when Federal OSHA makes a program change that renders its program more effective, a state plan must timely adopt a corresponding change in order to maintain a safety and health program that is at least as effective as Federal OSHA’s. However, in this case, since the withdrawal of Federal OSHA’s ETS does not impose any new requirements or otherwise render the Federal program more effective, state plans are not required to take any action. OSHA’s withdrawal of the ETS became effective on January 26, 2022.
If you have any questions, please contact Evelyn Sahr (esahr@eckertseamans.com 202-659-6622) or Drew Derco (dderco@eckertseamans.com 202-659-6665).
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