OSHA Withdraws Temporary COVID-19 Vaccination and Testing ETS Directive

The Department of Labor’s Occupational Safety and Health Administration (“OSHA”) issued a notice in the Federal Register on a statement on the status of the OSHA COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) following the aftermath of the Supreme Court’s issued stay on January 13, 2021.

In an accompanying statement, OSHA stated:

“The U.S. Department of Labor’s Occupational Safety and Health Administration is withdrawing the vaccination and testing emergency temporary standard issued on Nov. 5, 2021, to protect unvaccinated employees of large employers with 100 or more employees from workplace exposure to coronavirus. The withdrawal is effective January 26, 2022.

Although OSHA is withdrawing the vaccination and testing ETS as an enforceable emergency temporary standard, the agency is not withdrawing the ETS as a proposed rule. The agency is prioritizing its resources to focus on finalizing a permanent COVID-19 Healthcare Standard.

OSHA strongly encourages vaccination of workers against the continuing dangers posed by COVID-19 in the workplace.”

OSHA highlighted the following areas that the agency will consider as it develops the final rule:

• Whether employers with fewer than 100 employees should be covered by a potential final standard; whether such employers are currently requiring workers to get vaccinated (either with or without offering alternatives, such as testing and masking); and what benefits and challenges they have experienced.
• Whether the scope of the rule should change to address the significant risk posed by COVID-19 in the workplace. For example, should portions of the rule, such as masking requirements, apply to fully vaccinated workers?
• Whether the agency should consider additional scientific information about prior COVID-19 infection and immunity. “Given scientific uncertainty and limitations in testing for infection and immunity, OSHA is concerned that it would be infeasible for employers to operationalize a standard that would permit or require an exception from vaccination or testing and face-covering based on prior infection with COVID-19,” the agency said.
• Whether OSHA should impose a strict vaccination mandate with no alternative compliance options.
• What types of COVID-19 vaccination policies employers have implemented to protect workers; whether vaccination is mandatory or voluntary under the policy; what type of leave is offered; and what percentage of their workforce was vaccinated as a result.
• Whether employers have COVID-19 testing and removal policies and what those policies require.

Employers should continue to monitor the development of OSHA rules and regulations, but this process will take much longer than the ETS process. Also note that OSHA’s withdrawal of the ETS does not preclude states or other jurisdictions from implementing their own vaccine mandate. Courts have also been mostly supportive of the right of individual employers to apply their own vaccine mandates, incentive and surcharges to their employees.

Written by: Michelle Cammayo

IMA will continue to monitor regulator guidance and offer meaningful, practical, timely information.

This material should not be considered as a substitute for legal, tax and/or actuarial advice. Contact the appropriate professional counsel for such matters. These materials are not exhaustive and are subject to possible changes in applicable laws, rules, and regulations and their interpretations.