OSHA withdraws ETS as it moves toward permanent regulatory solution

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The Occupational Safety and Health Administration announced today that, effective tomorrow, January 26, 2022, it will withdraw its Emergency Temporary Standard (ETS) mandating COVID-19 vaccination or weekly testing/masking requirements for employers with 100 or more employees.

After the U.S. Supreme Court’s decision last week finding the ETS to be an unconstitutional exercise of power and staying the implementation of the mandate, presumably OSHA elected to withdraw the ETS rather than having the U.S. Court of Appeals for the Sixth Circuit decide the case unfavorably for OSHA and the Biden Administration on the merits.

OSHA working expeditiously on new rule

Although OSHA is withdrawing the vax-or-test ETS as an enforceable temporary standard, the Agency is now focusing on a permanent COVID-19 healthcare standard and is treating the ETS as a proposed rule. Because OSHA will review comments submitted during the rulemaking process, employers, trade associations, and business groups should definitely weigh in on the impact a permanent vax-or-test healthcare standard would have on employers.

State and local government vaccination and testing requirements are not affected by the withdrawal of OSHA’s ETS and, therefore, employers must continue to comply with such requirements.

OSHA to continue to “vigorously enforce” general duty clause

Notwithstanding the withdrawal of the vaccination and testing ETS, OSHA continues to strongly encourage the vaccination of workers and still requires every employer to take all appropriate and recommended safety and health measures to prevent the spread of COVID-19 in the workplace.

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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