Vaccination and Testing ETS is Dead! Next Up – a Permanent Rule?

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The Emergency Temporary Standard (ETS) requiring employers with 100 or more employees to either mandate COVID-19 vaccines for all employees or provide a testing and masking alternative to vaccination has been formally withdrawn by OSHA effective today (January 26, 2022). As a result, there will be no further court proceedings related to the ETS, and large employers now have certainty that they will not be required to implement the ETS.

However, in announcing the withdrawal of the ETS, OSHA was careful to make clear that the Vaccination and Testing rule has been withdrawn as an “enforceable emergency temporary standard” but not as a proposed permanent rule. Therefore, OSHA will continue the usual proposed rulemaking process with respect to the Vaccination and Testing rule.

One significant difference between the regular rulemaking process and the emergency temporary standard process is that OSHA is not required to prove that there is a “grave danger” to adopt a regular permanent rule (that is required for an emergency temporary standard).

The withdrawal of the ETS does bring much-needed certainty to employers, but it remains to be seen how long this reprieve will last.

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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