As we previously reported, on January 13, the U.S. Supreme Court reimposed the “stay” barring OSHA from enforcing OSHA’s Emergency Temporary Standard relating to COVID-19 Vaccination and Testing, 86 Fed. Reg. 61,402 (Nov. 5, 2021) (“OSHA ETS Rule”), concluding that the plaintiffs were “likely to succeed on the merits of their claim that the [OSHA] Secretary lacked authority to impose the mandate.”
Remember, the OSHA ETS Rule would have required employers with 100+ employees to implement certain policies relating to COVID-19, including a requirement for employees to be vaccinated or submit to weekly COVID-19 testing. The Supreme Court did not officially “invalidate” the OSHA ETS Rule and, instead, remanded the case back to the Sixth Circuit to reach a decision on the merits. In the interim, Minnesota OSHA, which adopted the federal rule on January 3, announced that it would “suspend enforcement of the ETS pending future developments.”
Today, OSHA announced that it was withdrawing the OSHA ETS Rule and filed a motion to dismiss the Sixth Circuit case, arguing that the agency’s withdrawal of the proposed rule renders the case “moot.”
In its announcement, OSHA stated that the withdrawal is “effective January 26, 2022” and the agency is instead “prioritizing its resources to focus on finalizing a permanent COVID-19 Healthcare Standard.” Notwithstanding the withdrawal, OSHA stated that it “continues to strongly encourage the vaccination of workers against the continuing dangers posed by COVID-19 in the workplace.” OSHA has also suggested that it will utilize its enforcement authority under the General Duty Clause, which is a “catch-all” provision of the OSH Act that requires that employers maintain a workplace free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees.
Minnesota OSHA has yet to make any announcement relating to OSHA’s withdrawal of the ETS Rule, but it will likely follow federal OSHA’s lead in withdrawing the OSHA ETS Rule.
Bottom Line
The OSHA ETS Rule is officially kaput. While we expect that OSHA will continue to pursue workplace standards related to COVID-19, the rules will likely be focused on specific industries, such as healthcare and meat processing.
Employers should also remember that state and local authorities may also promulgate more restrictive workplace safety standards. For example, California OSHA issued its own ETS standard on November 30, 2020 and the standard remains in effect for California employers through April 14, 2022.
We will continue to monitor this issue as it develops.