Federal OSHA Withdraws Its Vaccine-or-Test ETS: What's Next?

• Published date: 31 January 2022
• Subject Matter: Employment and HR, Coronavirus (COVID-19), Health & Safety, Employment and Workforce Wellbeing
• Law Firm: Littler Mendelson
• Author: Ms Melissa K. Peters, Charles F. Trowbridge and Sarah M. Martin

On January 26, 2022, the federal Occupational Safety and Health Administration (OSHA) withdrew its COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS), which required large employers to ensure that their employees either get vaccinated against COVID-19 or undergo regular COVID-19 testing in lieu of vaccination. This announcement follows on the heels of a January 13 decision from the U.S. Supreme Court that stayed implementation of the ETS pending a lower court decision on the merits of a legal challenge to the ETS. Despite withdrawing the ETS as an enforceable standard, and effectively ending the current round of ETS litigation, OSHA emphasized that the ETS will continue to serve as its proposal for a permanent standard.

Background

On November 5, 2021, OSHA promulgated an ETS requiring employers with at least 100 employees to make certain that their workers are fully vaccinated against COVID-19 or submit to weekly COVID-19 testing and wear a face covering at work. The ETS was met with numerous legal challenges filed by various groups across the country. Within a week of its adoption, on November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit issued an order staying enforcement of the ETS. The remaining legal challenges were consolidated for review before the U.S. Court of Appeals for the Sixth Circuit to determine whether to continue, alter, or lift the Fifth Circuit's order of a preliminary stay. In a decision published December 17, 2021, the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit's stay of the ETS. Within hours of the Sixth Circuit's decision, several emergency appeal applications were filed with the Supreme Court.

On January 13, 2022, the Supreme Court granted emergency relief, once again staying implementation of the ETS. In a 6-3 decision, the Court held that the challengers were likely to succeed on their argument that OSHA lacked the authority to promulgate the ETS. As the majority explained, under the law, OSHA is empowered to "set workplace safety standards, not broad public health measures" (emphasis in original). Continuing, the majority stated, "although COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most" (emphasis in original). Thus, the majority held, allowing OSHA to regulate broadly "the hazards of daily living" would expand OSHA's authority beyond the bounds Congress set for it. Accordingly, the majority found that enforcement of the ETS...