OSHA has officially withdrawn the ETS and has issued a statement on its website which states, “The U.S. Department of Labor’s Occupational Safety and Health Administration is withdrawing the vaccination and testing emergency temporary standard issued on Nov. 5, 2021, to protect unvaccinated employees of large employers with 100 or more employees from workplace exposure to coronavirus.” The withdrawal was effective January 26, 2022.
The withdrawal means that the Sixth Circuit Court will no longer be ruling on the merits of the ETS, and there is no expectation that ETS could be revived by a court. However, employers should be mindful that OSHA is still pursuing a permanent COVID-19 standard via the federal government’s standard rulemaking procedural process, so this may not be the last we will hear from the agency on COVID-19 safety measures that will impact a wide range of employers.
Next Steps for Employers
In the interim, employers should be mindful of OSHA’s General Duty Clause as part of their overall workplace safety and health decision-making process, as OSHA previously stated that it intends to pursue measures related to COVID-19 exposure in the workplace under this Clause. Additionally, employers in “high-hazard industries” that may be covered under OSHA’s COVID-19 National Emphasis Program (NEP Program) should pay special attention to OSHA’s directives under the NEP Program, as employers in these industries are likely to face additional scrutiny from OSHA. Lastly, there may also be state and local COVID-19 workplace safety laws which have stricter requirements that must be followed.
HR Works will continue to monitor closely and provided updated information as the proposed rule progresses through the government’s rule making procedure.