OSHA Withdraws COVID-19 Temporary Emergency Standard Requiring Vaccination Or Weekly Testing

OSHA has withdrawn its COVID-19 vaccination and testing emergency temporary standard (ETS) for employers with 100 or more employees. The withdrawal went into effect Wednesday.

The agency also has filed a motion with the U.S. Court of Appeals for the Sixth Circuit, asking the appeals court to dismiss the pending, consolidated legal challenges to the ETS as moot because of the withdrawal.

Why Did OSHA Withdraw the COVID-19 ETS?

OSHA’s ETS mandate for employers with 100 or more workers to require employees either to be fully vaccinated or pass a Covid-19 test at least weekly has been in doubt since it was issued on November 5, 2021.

OSHA saw the handwriting on the wall when the U.S. Supreme Court, in 6-3 decision on January 13, 2022, reinstated a nationwide stay of the enforcement of the ETS while the Sixth Circuit considered the rule’s legality.

The Court’s six conservative justices called the ETS an unauthorized exercise of OSHA’s statutory authority and found that the petitioners were likely to prevail on the merits.

 The agency understood that, even if the Sixth Circuit upheld the ETS, the Supreme Court likely would again rule that OSHA exceeded its statutory authority to mandate the vaccinate-or-test provisions.

By withdrawing the ETS now, OSHA avoids further adverse court precedents.

What Happens Next at OSHA?

There are two “next steps” with OSHA. First, the agency said it will continue to enforce its longstanding respiratory protection, personal protective equipment, and sanitization standards.

In addition, OSHA will use its “General Duty Clause” to enforce against recognized workplace hazards, including employers’ responses to the COVID-19 pandemic.

OSHA notes that its COVID-19 National Emphasis Program applies CDC recommendations to its enforcement procedure, offering regulated businesses some guidelines for COVID plans.

Second, in its withdrawal announcement, OSHA said it will continue to develop a permanent COVID-19 workplace standard.

Because the Supreme Court found that OSHA has the authority to regulate “occupation-specific” COVID-19 risks based on a worker’s job or workplace, the agency can promulgate a narrower standard.

Any permanent standard likely will be challenged in court, even though OSHA would not need to meet the “grave danger” threshold that applies only to emergency temporary standards.

How Does the ETS Withdrawal Affect OSHA State Plans?

Notwithstanding OSHA’s withdrawal of the ETS, states and localities can regulate or impose COVID-19-related mandates on employers.

There are 22-states that have federally approved OSHA plans and adopt their own health and safety plans that are “at least as effective” as the federal standards.

OSHA does not have jurisdiction over private employers in these 22 approved-plan states.

Because OSHA does not currently have a COVID-19 standard in place, the OSHA plan states are free to adopt standards identical to, or different from, the withdrawn OSHA ETS.

Some state OSHA plans have announced their intention to back away from promulgating a vaccinate-or-test mandate.

What About Other State Responses to a Vaccinate-or-Test Mandate?

State and local authorities are split on vaccination mandates. Alabama, Arkansas, Florida, Iowa, Kansas, Montana, North Dakota, Tennessee, Texas, Utah, and West Virginia have enacted laws intended to curtail or limit workplace vaccine mandates.

Other states, namely California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Kentucky, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, and Washington, have enacted laws that may not preclude private employers from requiring employee vaccinations or that require vaccinations for certain categories of workers (e.g., state employees and contractors and health care workers).

What If My Workplace is Not Subject to a Mandate?

Employers not covered by a state or local mandate may choose to implement vaccinate-or-test policies and practices best-suited to the unique needs of their workplaces (remember that OSHA State Plan states may elect to promulgate standards of their own).

As employers, energy marketers should communicate clearly with their employees about any changes in their COVID-19 policies and practices, making additional changes, as necessary.

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