OSHA Withdraws Vaccine-or-Test Standard

On January 25th, 2022, the Occupational Safety and Health Administration (OSHA) withdrew its vaccine-or-test standard for large employers. Indeed, the agency’s withdrawal went into effect on January 26. The withdrawal came nearly two weeks after the U.S. Supreme Court stayed the emergency temporary standard (ETS), preventing its enforcement. Meanwhile, on January 5, the Sixth Circuit appellate court upheld a previous injunction on a separate federal contractor vaccine mandate. Later, on January 21, a federal judge blocked the federal contractor vaccine mandate nationwide.

Recap of OSHA’s Vaccine-or-Test Standard

Published in the Federal Register on November 5th, 2021, the ETS had covered employers with at least 100 employees. In summary, the standard had required covered employers to develop, implement, and enforce a mandatory COVID-19 vaccination policy. Therefore, employees who work for covered employers needed to either:

• receive a COVID-19 vaccination; or
• undergo regular COVID-19 testing and wear a face covering at work.

Eventually, the U.S. Supreme Court (the Court) blocked enforcement of the vaccine-or-test standard in a 6-3 decision on January 13. Specifically, the Court found that as the threat of COVID-19 and the effects of a vaccine extend beyond the workplace, the standard went beyond OSHA’s jurisdiction. In other words, the Court reasoned that OSHA could only “set workplace safety standards, not broad public health measures.”

Vaccine-or-Test ETS Withdrawn

Subsequently, after evaluating the Court’s decision, OSHA withdrew its vaccine-or-test standard as an enforceable emergency temporary standard. The withdrawal was effective immediately on January 26. However, OSHA still retains the vaccine-or-test ETS as a proposed rule. Thus, the agency is refocusing its efforts on a permanent COVID-19 workplace standard. Furthermore, OSHA continues to suggest that employers implement masking and testing procedures in the workplace. In addition, the agency strongly encourages employees to still get vaccinated for COVID-19.

Employer Takeaways

Undoubtedly, OSHA’s withdrawal of the vaccine-or-test standard for large employers removes some confusion among employers about the rule’s enforcement. However, state and local COVID-19 measures may still apply to employers and customers. Accordingly, all employers should refer to their respective state and local guidance on COVID-19 prevention within the workplace.