Yesterday afternoon, OSHA announced that they are formally withdrawing their Emergency Temporary Standard (ETS) that required COVID-19 vaccinations or weekly testing for the workers of employers with over 100 employees, effective today, January 26, 2022. In addition, OSHA announced that they have requested that the 6th Circuit dismiss petitions for review formally ending any pending court battle over the merit of the ETS.
It is important to note that the OSHA’s has only withdrawn the enforcement of the ETS and has not removed the proposal all together. The ETS served as a proposal for a permanent rule. This leaves the door open for OSHA to tweak and issue a revised permanent rule that could include a vaccination or testing requirement. It is unlikely that a vaccination or testing standard would fare any better in wake of the Supreme Court ruling that OSHA does not have the power to do so. Any rule that includes a vaccination or testing requirement would most likely face legal challenges.
In lieu of an OSHA standard states and individual companies are still free to issue their own vaccination and/or testing requirements. OSHA has stated that they will continue their enforcement of the General Duty Clause to address recognized hazards, including workplace response to COVID-19. After that Supreme Court made their decision to block the mandate 2 weeks ago, Secretary of Labor Marty Walsh, stated that “OSHA will do everything in its existing authority to hold businesses accountable for protecting workers, including under the COVID-19 National Emphasis Program and General Duty Clause.”
How We Can Help
Michael Best can help make sure your approach is both within the law and aligned with your organization’s needs and culture. Our Vaccination Policy Tool Kit is designed to cut through the confusion and empower you to make informed decisions. It provides practical advice and templates to help employers create their own workplace vaccination approach. Check out our COVID-19 Vaccination Policy Tool Kit!