Synopsis of Seyfarth: OSHA has removed its private employer COVID-19 Vaccination and Testing ETS, effective Tuesday, January 25, 2022.
On Tuesday, January 25, 2022, the Federal Occupational Safety and Health Administration (“OSHA”) announcement the withdrawal of its temporary emergency standard for vaccination and testing for COVID-19 (“ETS”). The Federal Register published a advanced copy of the public inspection notice before its official publication on January 26, 2022.
OSHA’s ETS had a long and winding road to withdrawal, having been suspended almost immediately by the United States Court of Appeals for the Fifth Circuit – the rule, issued November 5, 2021, was enjoined the next day. The United States Court of Appeals for the Sixth Circuit lifted that stay, leading the petitioners to file emergency petitions with the United States Supreme Court to suspend the ETS again. After hearing arguments on these claims on January 7, 2022, the U.S. Supreme Court stayed again at ETS in an opinion issued on January 13.
No longer able to enforce the ETS, OSHA had to decide whether or not to pursue a decision on the merits before the Sixth Circuit. Even though OSHA received a favorable ruling before the Sixth Circuit, long-term success seemed unlikely, given the Supreme Court’s denunciation of the overbroad scope of the ETS. By law, the ETS expires on May 5, 2022, leaving little time to conclude the case on the merits in the Sixth Circuit and the Supreme Court. Additionally, OSHA may be concerned that the Supreme Court may issue a decision on the merits that may limit OSHA’s ability to issue new ETSs in the future.
Ultimately, OSHA decided to seek other avenues to deal with the alleged dangers of COVID. OSHA has explicitly stated that it “is not withdrawing the ETS as a proposed rule,” meaning it could continue to pursue a broad and permanent COVID-19 or infectious disease standard. A permanent COVID-19 or infectious disease standard would result in a lengthy and contentious notice and comment period, and likely more litigation. But, for now, it seems”[t]The agency is prioritizing its resources to focus on finalizing a permanent COVID-19 healthcare standard,” so the likelihood of a COVID-19 standard based on the withdrawn ETS is not not clear.
We expect OSHA to continue to inspect workplaces for COVID-19 hazards and cite employers for violations of existing OSHA standards that may involve COVID (e.g. PPE, respiratory protection , sanitation, blood-borne pathogens, employee access to medical and exposure records, and record keeping/reports) or use the General obligation clause of the OHS law, while continuing to execute its national COVID-19 focus program. OSHA could also pursue a new, more focused emergency standard, which the Supreme Court appeared to sanction in its Jan. 13, 2022 opinion.