As explained in our previous post, on January 13, 2022, the United States Supreme Court blocked the OSHA vaccination or testing Emergency Temporary Standard (“ETS”) pending full consideration of the matter by the Sixth Circuit Court of Appeals.  In  response to the Supreme Court’s decision, OSHA is withdrawing the ETS, effective January 26, 2022.

Although OSHA is withdrawing the ETS as an “emergency temporary standard,” the ETS also serves as a proposed final rule, and OSHA made clear that its action does not affect the ETS’s status as such.  Therefore, it is possible that OSHA could issue a final vaccination or testing rule.  In response to the Supreme Court’s decision, OSHA could issue a narrower vaccine or test mandate limited to workplaces where the virus poses a special danger due to the nature of the work.

According to a statement on OSHA’s website, “[t]he agency is prioritizing its resources to focus on finalizing a permanent COVID-19 Healthcare Standard.”  A permanent COVID-19 standard for healthcare workers could be similar to the COVID-19 Healthcare ETS, which OSHA issued in June 2021 and which we summarized in a previous post.  The Healthcare ETS was in effect for six months until it expired and was withdrawn by OSHA in December 2021.  OSHA’s statement also “strongly encourages vaccination of workers against the continuing dangers posed by COVID-19 in the workplace.”

In the meantime, OSHA will enforce workplace safety issues related to COVID-19 under its existing authorities, including the COVID-19 National Emphasis Program and General Duty Clause.  The National Emphasis Program targets businesses in “high-hazard industries” whose employees have an increased risk of exposure to COVID-19.  Under the General Duty Clause, employers have a duty to furnish their employees “employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to [their] employees.”