OSHA Vaccine ETS: What’s Next?

On January 13, the United States Supreme Court stayed the “Emergency Temporary Standard” (ETS) issued by the U.S. Occupational Safety Administration (OSHA) on COVID-19 Vaccine and Testing requirements for employers with over one hundred employees.

The ruling held that the ETS mandate would not be enforced, as OSHA may have exceeded its authority. The Supreme Court returned the issue back to the U.S. Court of Appeals for the Sixth Circuit to decide the validity of the ETS.

The majority opinion did make any ongoing efforts to revive the ETS unlikely to succeed. The Court signaled that those opposing the ETS are likely to triumph if the case ever returns to the Supreme Court. It is possible that the Biden Administration could elect to withdraw the ETS and not pursue a timely legal challenge on an issue that looks unwinnable.

Regardless of what happens with the ongoing legal status of the ETS, employers want to know what they should do now.

  1. An employer who has implemented an ETS policy can choose to rescind or continue their policy.
  2. If an employer has gathered the vaccination status of their employees, they should safely retain that information in the unlikely event the ETS stay is lifted.
  3. Continue to implement and enforce all workplace health and safety measures to respond to the ongoing threats posed by COVID-19.

Employers should also be prepared for some state governors and legislatures to pursue legislative actions to implement all or part of the requirements from the stayed OSHA ETS.

The ABMA will continue to monitor all developments with vaccine and testing mandates moving forward.