OSHA Announces Withdrawal of COVID-19 Vaccination and Testing ETS

Kilpatrick Townsend & Stockton LLP
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Please note: The below information may require updating, including additional clarification, as the COVID-19 pandemic continues to develop.

On Tuesday, January 25, 2022, the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) announced it is withdrawing the emergency temporary standard (“ETS”) issued on November 5, 2021. As discussed in prior legal alerts, the ETS required that workers of employers with 100 or more employees be vaccinated against COVID-19 or be tested weekly, among other requirements.

OSHA’s announcement comes in the wake of the U.S. Supreme Court’s ruling that OSHA could not enforce the standard while the Sixth Circuit Court of Appeals evaluated the rule’s legality. Once OSHA announced it would withdraw the ETS, OSHA’s lawyers moved to dismiss the legal challenge to the ETS before the Sixth Circuit, stating that the announced withdrawal has mooted the legal challenge, which was brought by several majority-Republican states. Notably, in its January 25, 2022 announcement, OSHA indicated it would pursue adoption of vaccination and testing standards through formal rulemaking.

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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