On Jan. 25, the federal Occupational Safety and Health Administration (OSHA) responded to the Supreme Court’s recent stay of its Emergency Temporary Standard (ETS) mandating COVID-19 vaccination or testing by releasing a rule that primarily does three things: (1) it withdraws the ETS as an enforceable requirement for employers; (2) it maintains the ETS for purposes of establishing part of the administrative record necessary to issue a future final regulation concerning the same or similar subject matter; and (3) it suggests that states operating their own OSHA-approved occupational safety and health plans (State Plans) need not follow OSHA in removing their corresponding requirements, leaving open the possibility that employers in many states may still be subject to some mandate at the state level.

First, the rule withdraws the federal ETS as an enforceable regulatory requirement for employers. This step seemed all but inevitable after the Supreme Court said, “Agreeing that applicants are likely to prevail, we grant their applications and stay the rule.” Likely seeing the writing on the wall, OSHA withdrew the ETS for purposes of regulatory enforcement.

Second, while OSHA withdrew the rule for purposes of enforcement, it is maintaining the ETS for purposes of establishing the administrative record necessary to issue a future, final regulation concerning COVID-19 vaccination and testing. To understand the import of this second aspect of the rule, recall that the initial ETS had two core procedural functions: (1) it imposed an immediately effective but temporary standard on employers; and (2) it doubled as a proposed rule and an invitation to submit comments to OSHA on the possibility of converting that temporary standard into a permanent requirement for employers. Comments on the ETS were required to be submitted to OSHA by Jan. 19, and OSHA did not reopen or extend that comment period in this rule. That means the comment period on the proposal has now closed, so OSHA will review the comments it has received, draft the final regulation, and then send it to the White House’s Office of Information and Regulatory Affairs (OIRA) for review and a limited round of public input before releasing the final rule to the public. In sum, despite the Supreme Court’s ruling and OSHA’s corresponding withdrawal of the ETS for purposes of enforcement, OSHA is indicating that it will likely issue a permanent final regulation concerning COVID-19 vaccination and testing, and it may do so relatively soon because it is treating the notice-and-comment process as already being complete.

Lastly, the rule addresses how the 28 states and territories that run their own OSHA-approved occupational safety and health plans (State Plans) ought to respond to OSHA’s withdrawal of the ETS as an enforceable regulatory standard. After noting that State Plans must maintain requirements that are at least as effective as OSHA’s regulations, OSHA said that “where, as here, the Federal program change does not impose any new requirements or otherwise render the Federal program more effective, State Plans are not required to take any action.” This means, OSHA has left open the option for State Plans to continue imposing their own state-level permutations of the ETS, and governors and state health officials may in like manner continue to enforce other pandemic-related orders, regulations, and requirements.