OSHA Withdraws Vaccine/Testing Mandate ETS

In a decision that effectively ends litigation on the rule, The U.S. Occupational Safety and Health Administration (OSHA) announced that it would withdraw the Emergency Temporary Standard (ETS) vaccine/testing mandate for employers with 100 or more employees effective January 26, 2022. OSHA announced this decision after the Supreme Court of the United States issued a decision to impose a stay on the rule after determining that OSHA lacks the authority to issue the rule.

Last week, Kentucky Attorney General Daniel Cameron and 26 other states asked OSHA to recognize the court’s decision and withdraw the regulation. Cameron issued a positive statement in response to OSHA’s announcement and stated, “As we have done since the beginning, we will remain vigilant and closely evaluate any future vaccination mandates or permanent standards issued by OSHA to ensure that they are within the limits of the agency’s authority.”

In withdrawing the ETS, OSHA emphasized that “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.” This means that OSHA is leaving the regulation out there until it decides if it will attempt to finalize the regulation. KLC will continue monitoring the situation and provide updates.

The withdrawal of the ETS for large private employers does not impact OSHA’s separate emergency order for health care settings and workers. The Supreme Court narrowly allowed that rule to take effect in a 5-4 decision earlier this month.