OSHA Withdraws Vaccine-or-Mask ETS

Pat Miller and Brooke A. Colaizzi

OSHA has announced that, in light of the recent Supreme Court decision reimplementing the stay of the enforcement of its vaccine-or-mask emergency temporary standard (“ETS”), the Agency will be withdrawing that ETS.  (2022-01532.pdf (federalregister.gov))

However, OSHA has made it clear that it will continue to pursue a permanent standard based on the provisions of the ETS.  The Agency also stated that it will be prioritizing work on a permanent standard to protect healthcare workers from COVID-19 risks.  What this means for employers is that, for the time being, they do not have to be concerned with the requirements of the ETS, as there no longer is the prospect of its enforcement.  However, there is still a very real possibility that a vaccine-or-test rule, in an as-yet unknown form, could be announced in the coming months and pursued through ordinary notice and comment rulemaking.  We will continue to monitor these developments.