OSHA Withdraws Vaccine & Testing ETS

On January 25th, the U.S. Department of Labor announced it will withdraw its emergency temporary standard (ETS) requiring COVID-19 vaccination or testing for workers at large employers but continue to pursue a permanent standard to that effect.

The agency also asked the 6th U.S. Circuit Court of Appeals to dismiss judicial challenges to the emergency standard. In a statement, DOL commented that its withdrawal does not affect OSHA’s plan to make a requirement permanent.

“Although OSHA is withdrawing the Vaccination and Testing ETS as an enforceable emergency temporary standard, OSHA is not withdrawing the ETS to the extent that it serves as a proposed rule or otherwise affect the status of the notice-and-comment rulemaking commenced by the Vaccination and Testing ETS.”

The ETS served a dual purpose. The ETS also acts as a proposal for a permanent standard, which is separate from the litigation and requires the agency to undergo a formal rulemaking process with a notice-and-comment period.

A permanent standard could not match the ETS and would have a narrower scope, perhaps focusing on high-risk industries only. OSHA would need to go through the formal rule making process with a notice and comment period.

ABMA will continue to monitor all OSHA COVID-19 related rules and will provide updates as they become available.