Federal OSHA Withdraws its Vaccine-or-Test ETS: What’s Next?

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On January 26, 2022, the federal Occupational Safety and Health Administration (OSHA) withdrew its COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS), which required large employers to ensure that their employees either get vaccinated against COVID-19 or undergo regular COVID-19 testing in lieu of vaccination. This announcement follows on the heels of a January 13 decision from the U.S. Supreme Court that stayed implementation of the ETS pending a lower court decision on the merits of a legal challenge to the ETS.  Despite withdrawing the ETS as an enforceable standard, and effectively ending the current round of ETS litigation, OSHA emphasized that the ETS will continue to serve as its proposal for a permanent standard. 

Background

On November 5, 2021, OSHA promulgated an ETS requiring employers with at least 100 employees to make certain that their workers are fully vaccinated against COVID-19 or submit to weekly COVID-19 testing and wear a face covering at work.  The ETS was met with numerous legal challenges filed by various groups across the country.  Within a week of its adoption, on November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit issued an order staying enforcement of the ETS.  The remaining legal challenges were consolidated for review before the U.S. Court of Appeals for the Sixth Circuit to determine whether to continue, alter, or lift the Fifth Circuit’s order of a preliminary stay.  In a decision published December 17, 2021, the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of the ETS.  Within hours of the Sixth Circuit’s decision, several emergency appeal applications were filed with the Supreme Court.

On January 13, 2022, the Supreme Court granted emergency relief, once again staying implementation of the ETS.  In a 6-3 decision, the Court held that the challengers were likely to succeed on their argument that OSHA lacked the authority to promulgate the ETS.  As the majority explained, under the law, OSHA is empowered to “set workplace safety standards, not broad public health measures” (emphasis in original).  Continuing, the majority stated, “although COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most” (emphasis in original).  Thus, the majority held, allowing OSHA to regulate broadly “the hazards of daily living” would expand OSHA’s authority beyond the bounds Congress set for it.  Accordingly, the majority found that enforcement of the ETS should be stayed pending further review of its merits in the Sixth Circuit.

Withdrawal of the ETS

On January 25, 2022, OSHA announced that it was withdrawing the ETS as an enforceable emergency temporary standard.  The announcement, via a notice of withdrawal published in the Federal Register on January 26, 2022, does not elaborate on OSHA’s rationale for withdrawing the ETS other than to note that the decision was made “[a]fter evaluating the [Supreme] Court’s decision.” 

OSHA made clear that although it was withdrawing the ETS as an enforceable emergency temporary standard, the ETS will continue to serve as a proposed rule for a permanent standard under the Occupational Safety and Health Act (OSH Act).  Moreover, OSHA reiterated its commitment to COVID-19 vaccinations by “strongly encourage[ing]” workers to get vaccinated against COVID-19.

What’s Next: A Permanent Standard?

OSHA has made clear that it intends to use the withdrawn ETS as a proposal for a permanent standard, which is permitted under Section 6(c) of the OSH Act.  Section 6(c)(3) of the OSH Act requires that the ETS “as published” serve as the proposed permanent rule during the rule-making process.  This decision is not without consequence.  Courts have interpreted the Administrative Procedure Act as requiring that an agency’s final rule be a “logical outgrowth” of the proposed rule to ensure fair notice to the public and an ability to provide comment.1  Thus, should OSHA maintain the ETS as its proposal rather than issue a revised proposal and/or reopen the comment period, any permanent standard has to be a “logical outgrowth” of the ETS.  While the logical outgrowth doctrine does permit flexibility for an agency to make changes from a proposal to a final rule, an agency cannot abandon its proposal in favor of an entirely new approach without notice. 

In its recent decision, the Supreme Court attacked OSHA’s efforts to regulate something that was not a “workplace” hazard.  Given this decision, it seems unlikely that a permanent standard that merely mirrors the ETS in its present form would be able to survive judicial scrutiny.  As a result, assuming OSHA proceeds to adopt a permanent standard, it is unclear what it might look like.  A permanent standard may resemble a watered-down version of the ETS. Alternatively, OSHA might consider re-opening the comment period or issuing an updated proposal before issuing a permanent standard.

What’s Next: State OSHA Plans?

Twenty-eight states and U.S. territories operate their own OSHA-approved State Plans.  These State Plans must be “at least as effective” as federal OSHA’s safety and health regulations.2 In other words, federal OSHA’s safety and health regulations set the floor for OSHA-approved State Plans.  States and U.S. territories may implement additional regulations beyond those set forth by federal OSHA.

When OSHA initially announced its ETS, those states and U.S. territories operating their own State Plans were provided a limited amount of time to modify their State Plans to ensure that they were “at least as effective,” considering the federal OSHA ETS.  Minnesota and Illinois had formally adopted the federal OSHA ETS as part of their State Plans.  Although these states were not required to take any action based on OSHA’s announcement, both Minnesota and Illinois have announced that they have stayed enforcement of their State ETS following the Supreme Court’s decision.  This does not mean that other states will forego a vaccine-or-test ETS.  In fact, during a Standards Board Meeting held last week in California, many of the Cal/OSHA Standards Board members supported the inclusion of a vaccine-or-test provision as part of a temporary or permanent standard.

COVID-19 Healthcare Standard

In its January 25, 2022 announcement regarding its withdrawal of the Vaccination and Testing ETS, OSHA stated that it “is prioritizing its resources to focus on finalizing a permanent COVID-19 Healthcare Standard.”  The Healthcare ETS, which similarly served as a proposal for a permanent standard, was issued by OSHA in June 2021, and expired on December 21, 2021.  OSHA had previously expressed its intent to issue a permanent COVID-19 Healthcare Standard, and its January 25 statement shows that this remains a priority.

Littler’s Workplace Safety Practice Group and Workplace Policy Institute will continue to monitor and provide updates on any future developments.

Footnotes

1 See South Terminal Corp. v. EPA, 504 F.2d 646, 659 (1st Cir. 1974); Long Island Care at Home Ltd. v. Coke, 551 U.S. 158, 174 (2007).

2 See 29 CFR 1902.32(e); 29 CFR 1902.44(a). 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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