OSHA to Withdraw COVID-19 Vaccine-or-Test Emergency Standard

Author: David B. Weisenfeld

January 25, 2022

The Occupational Safety and Health Administration (OSHA) has announced it plans to withdraw its COVID-19 Emergency Temporary Standard (ETS) as of tomorrow. OSHA had issued the nationwide ETS to protect unvaccinated employees of large employers, (those with 100 or more employees) from the risk of contracting COVID-19 by strongly encouraging vaccination with its vaccine-or-test requirement.

But in a January 13 ruling, the Supreme Court blocked the ETS and issued a stay that prevented the administration from enforcing it. The 6-3 opinion found OSHA had exceeded its authority because its power is limited to "work-related dangers," and held that COVID-19 does not qualify as such a danger because it is a universal risk rather than an occupational hazard. The Court had called ordering 84-million Americans to either obtain the vaccine or undergo weekly COVID tests, "no everyday exercise of federal power."

The Supreme Court's decision sent the case back to the 6th Circuit Court of Appeals to review the ETS on its merits. However, the Court's forceful pronouncement left the ultimate chances of success for the ETS unlikely, at least in its existing format.

As a result, OSHA said it will withdraw its COVID-19 emergency standard. OSHA found that the opportunity for public comment on this withdrawal is "impracticable, unnecessary, and contrary to the public interest" because a comment period would unnecessarily delay resolving the ambiguity for employers and workers alike.

Despite the withdrawal of the ETS, OSHA made clear in its announcement that it continues to strongly encourage the vaccination of workers against the continuing dangers posed by COVID-19 in the workplace. The agency also noted it is not withdrawing the ETS to the extent that it serves as a proposed rule for a permanent standard, but did not say when it expects to finalize the rule.

A separate vaccine requirement for health care workers was upheld by the Supreme Court on the same day that the justices blocked the ETS. Unlike with OSHA's emergency standard, the Court reasoned that the Secretary for Health and Human Services has the authority to implement all kinds of infection control measures at hospitals, nursing homes and other health care facilities.