The Occupational Safety and Health Administration (OSHA) announced today, Jan. 25, 2022, that it is withdrawing its November 5, 2021 Emergency Temporary Standard (ETS), which would have required many private employers with 100 or more employees to mandate vaccination or weekly COVID-19 testing of their employees who work on-site. The withdrawal becomes effective on January 26, 2022, when it is scheduled to be published in the Federal Register.

The withdrawal comes days after the U.S. Supreme Court stayed enforcement of the ETS pending disposition of the lawsuit challenging the rule in the Sixth Circuit Court of Appeals. (For more information about the Supreme Court’s January 13, 2022 opinion, see our earlier alert.)

OSHA’s announcement makes clear that it has not given up on its vaccine-or-test rule for good. It states that “[a]lthough 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.” This means that while OSHA’s vaccine-or-test mandate will not be in effect in the immediate future as an emergency temporary standard, we may see its return in the form of a permanent standard. We will provide updates regarding the status of the proposed rule as they become available.

OSHA’s withdrawal of its ETS does not affect the Centers for Medicare and Medicaid Services (CMS) COVID-19 vaccination mandate. Read our New York Health Care Blog post on the CMS vaccine mandate for more detail.