OSHA Withdraws COVID-19 Vaccinate-or-Test ETS—Now What?

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On January 25, 2022, OSHA announced its decision to withdraw the vaccination, testing and face covering emergency temporary standard (ETS) issued on November 5 and effective January 26. As Manatt reported, the ETS required employers with 100 or more employees to, among other things, gather information about employee vaccination status and to require that employees either get vaccinated or test weekly and wear face coverings in the workplace.

What’s Next From OSHA?

Though OSHA has withdrawn the ETS, the agency has indicated that it will move forward with implementing a permanent standard to address the risk of COVID-19 in the workplace, which will be subject to the agency’s formal rulemaking notice-and-comment process. It is unclear at this point what that permanent rule will look like, when it will be released and what obligations it will impose on large employers. But OSHA has stated its intent to first focus on creating a permanent COVID-19 Healthcare Standard.

OSHA also continues to strongly encourage workers to get vaccinated against COVID-19 to prevent transmission in the workplace.

So what does it all mean? And what can, and should, employers do while they await further guidance from OSHA?

While the ETS is no longer effective and enforceable, employers are still obligated to provide workplaces that are free from “hazards”—like COVID-19—that cause or are likely to cause serious physical harm to workers. With COVID-19 still as present as ever, this means continuing to take precautions to keep workers safe by encouraging vaccination and following CDC guidelines regarding the use of face coverings and physical distancing, isolation and return to work criteria, and exposure protocols.

Employers should also continue to monitor, and ensure that they are complying with, state and local laws and regulations regarding employee vaccination, testing, and/or use of face coverings at the workplace. These regulations—which may be similar to or even more restrictive than the ETS—are not impacted by the ETS withdrawal, and as such must still be complied with.

Manatt will continue to monitor and report on future developments.

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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