OSHA Withdraws Its "Vax or Test" ETS; Moves Toward Permanent Standard To Be Issued Later

Labor & Employment

Fresh off the U.S. Supreme Court halting its proposed vaccine-or-testing rule for private businesses of at least 100 employees, the Occupational Safety and Health Administration (OSHA) on January 25 withdrew its proposed temporary rule knowing that it was likely to be deemed unenforceable by the high court once it returned there for consideration from the Sixth Circuit Court of Appeals. OSHA’s proposed Emergency Temporary Standard (ETS) covering many large, private employers across every conceivable industry is now dead in the water. 

However, besides attempting to impose an immediate temporary standard on employers, the ETS also served as an administrative prerequisite and invitation for the public to submit comments to OSHA as to the possibility of converting the temporary standard into a permanent one. All comments on the ETS were required to be submitted by January 19, so the necessary comment period for implementing a new permanent standard is now closed. Unless OSHA decides to re-open the comment period (unlikely), OSHA now will revisit the 121,000 comments it has received to date and draft a proposed final regulation for review by the White House. After this proposed final rule has then been circulated for additional public input, it will be released for implementation by covered employers. It is likely that, given the Supreme Court’s criticism of the proposed ETS, a final rule will be more narrow, likely focusing on high-hazard industries. 

Twenty-eight (28) states and territories administer their own occupational safety and health plans approved by OSHA. OSHA has indicated that such State Plans are free to continue imposing their own versions of the withdrawn ETS if they choose. Of course, once OSHA issues its permanent rule now expected to replace the ETS, these State Plans must maintain requirements that are at least as effective as OSHA’s ultimate say as to COVID-19-related safety in the workplace. 

We will simply have to wait and see on OSHA’s proposed Permanent Standard, which may well face substantial litigation yet again. In any event, private employers are reminded that they are free to implement a wide range of accepted "best practices" for safeguarding employees in the workplace (but for in a few states that impose restrictions). Employers may require or encourage workers to get vaccinated, provide paid time off for vaccination, establish rules for masking and physical distancing, encourage good hygiene, make sure that indoor spaces are properly ventilated and have protocols in place for employees exposed to COVID-19 or for those who test positive themselves. 

Please feel free to contact any member of our Labor and Employment team for assistance in addressing COVID-19-related issues affecting the workplace. 

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