Vaccination Update: OSHA ETS Withdrawn But OSHSA Is Still Seeking a Permanent Standard

by Lana L. Rupprecht, Esq. - Director, Product Compliance

& Marti Cardi, Esq. - Vice President, Product Compliance

January 27, 2022

 

You knew it was coming...another update on vaccination mandates.

As we previously informed you here, on January 13, 2022, the U.S. Supreme Court issued an Order staying the enforcement of the OSHA Emergency Temporary Standard (ETS). The OSHA ETS was the federal vaccination or testing requirement for private employers with 100 or more employees.

Although the stay was technically temporary, the U.S. Supreme Court found in its January 13 opinion, that the parties challenging the OSHA ETS would likely succeed – meaning OSHA's attempt to enforce the ETS, as written, would likely lose. The opinion can be found here.

On January 25, 2022, OSHA posted the following announcement:

The U.S. Department of Labor's Occupational Safety and Health Administration is withdrawing the vaccination and testing emergency temporary standard issued on Nov. 5, 2021, to protect unvaccinated employees of large employers with 100 or more employees from workplace exposure to coronavirus. The withdrawal is effective January 26, 2022.

Although OSHA is withdrawing the vaccination and testing ETS as an enforceable emergency temporary standard, the agency is not withdrawing the ETS as a proposed rule. The agency is prioritizing its resources to focus on finalizing a permanent COVID-19 Healthcare Standard.

OSHA strongly encourages vaccination of workers against the continuing dangers posed by COVID-19 in the workplace.

Further, OSHA submitted a formal withdrawal of the ETS which can be found here, officially stating that the ETS will serve as a proposed rule under the Administrative Procedure Act subject to the regular notice-and-comment rulemaking process previously underway. To the extent you want detailed information on this process, the federal government has a great resource explaining the administrative rule making process here.

What does all of this mean?

  • Effective January 26, 2022, OSHA is withdrawing the ETS as a temporary standard. That means the pending lawsuits challenging the ETS will stop.
  • The ETS will remain as a proposed rule subject to the regular formal rulemaking process. As we previously informed you here, the notice and comment period for the ETS as a final rule ended on January 19th. After the process is complete, a formal regulation may be published on or before May 5.
  • It is unknown exactly what the final rule will look like but given OSHA's strong position, it is reasonable to assume that certain work-safety-related elements of the OSHA ETS will remain in place. Stay tuned, and we will continue to keep you posted as this develops.
  • As we have told you in the past, employers who were subject to the OSHA ETS may still implement their own vaccination policy. Given OSHA's intention to move forward with a final rule, implementing some sort of vaccination and testing policy may keep employers ahead of the game, subject to state laws of course. See our blog about state laws here.

Matrix Can Help!

Matrix offers ADA and medical vaccine exemption services for its ADA clients. For more information about our solutions, please contact your Matrix or Reliance Standard account manager, or reach us at ping@matrixcos.com.