On Jan. 25, 2022, OSHA withdrew the Nov. 5, 2021, Emergency Temporary Standard (ETS) which was in a state of flux from the time it was published until the U.S. Supreme Court reinstated the nationwide stay earlier this month. While employers were left wondering what the Sixth Circuit court of appeals may do with the ETS, that is no longer an issue. The withdrawal of the ETS is effective today.
What does the OSHA ETS withdrawal mean?
Employers covered by the ETS can breathe a sigh of relief knowing that they will no longer be required to choose whether to mandate the COVID-19 vaccine or implement a weekly testing procedure for unvaccinated employees. Rather, employers are free to choose how to protect their employee population from COVID-19 subject to any restrictions in applicable state or local laws. Keep in mind that OSHA’s General Duty clause still requires employers to provide a work environment that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” Employers should continue to follow OSHA’s guidance on COVID-19 (updated Aug. 13, 2021), which includes encouraging employees to be vaccinated and providing employees face coverings.
By no means does the withdrawal of the standard mean that OSHA is finished addressing COVID-19 in the workplace. Rather, OSHA indicated that it would move forward with the notice-and-comment rulemaking for a COVID-19 standard. The comment period closed Jan. 19, 2022. It is unknown what a permanent COVID-19 rule will include but it is fair to expect it to be more tailored to target high-hazard industries such as healthcare, meatpacking and processing, distribution centers and other highly populated workplaces. In fact, OSHA has expressly stated that it “is prioritizing its resources to focus on finalizing a permanent COVID-19 Healthcare Standard.” A final rule relating to the general ETS would take effect May 5, 2022 (six months following the initial Nov. 5 publication date). While we do not know what the final rule will look like, it seems safe to assume it will not mirror the initial ETS.
What about State Plan states?
OSHA made it clear that the withdrawal of the ETS means State Plans are not required to take any action with regard to the ETS. A state with a State Plan is free to develop its own workplace safety plans so long as they are “at least as effective” as the federal program.
Does this withdrawal impact other federal vaccine mandates?
The withdrawal of the ETS has no impact on the Centers for Medicare & Medicaid Services (CMS) vaccine mandate. This mandate is in effect nationwide with varying compliance deadlines. See the CMS Dec. 28, 2021, guidance and the CMS Jan. 14, 2022, guidance for further details.
The vaccine mandate impacting covered federal contractors remains stayed nationwide.
We will continue to provide updates as there are developments in this area. Should you have questions, reach out to your Lockton account team.