On Tuesday, January 25, 2022, the U.S. Occupational Safety
and Health Administration (“OSHA”) announced the withdrawal of its November
2021 Emergency Temporary Standard (“ETS”) that would have required private
sector U.S. employers with 100 or more employees to either mandate COVID-19
vaccinations for their employees or require them to comply with weekly COVID-19
testing and face covering requirements. On January 13, 2022, the U.S. Supreme
Court stayed enforcement of the ETS, finding that those parties challenging it
were likely to succeed and sent the matter back to a lower federal appellate
court for review on the merits of the parties’ arguments. In issuing its order
staying enforcement of the ETS, the six-justice majority sent a clear signal to
OSHA that it believed OSHA may have exceeded its authority in issuing a broad
vaccination-or-testing requirement that would impact nearly 90 million U.S.
employees. The Court explained that OSHA exists to regulate workplace safety,
not the public health. Following the Supreme Court’s decision, OSHA decided to
withdraw the ETS.
Although the ETS is now officially withdrawn, OSHA indicated
in its notice that it was not withdrawing the ETS to the extent it serves as a
proposed rule under the rulemaking provisions of the Occupational Safety and
Health Act (“OSH Act”). That means that OSHA may still pursue some form of rule
requiring employers to mandate vaccination or testing, but the process for such
a rule will follow the ordinary rulemaking notice-and-comment process, rather
than the expedited emergency process OSHA employed in implementing the
now-withdrawn ETS. It is additionally possible that OSHA may attempt to impose
ETS-like requirements on a smaller scale, targeted at specific industries, but
that remains to be seen. For now, employers that were to be covered by the ETS
no longer need to plan for the possibility of its applicability or enforcement.
Nevertheless, all employers must continue to take appropriate, reasonable
COVID-19 workplace infection control and mitigation measures consistent with
the General Duty Clause in the OSH Act, which requires that employers provide
their employees with a working environment “free from recognized hazards that
are causing or are likely to cause death or serious physical harm.”
