The Occupational Safety and Health Administration (OSHA) formally withdrew the COVID-19 vaccine mandate for large private employers effective Jan. 26, 2022. This announcement follows the United States Supreme Court’s recent decision to block the Biden administration from enforcing OSHA’s Emergency Temporary Standard (ETS), which required private employers with 100 or more employees to mandate COVID-19 vaccinations or, in the alternative, to require weekly testing.
No More Vaccine-or-Test Mandate for Large Employers
On Jan. 25, 2022, OSHA published an official statement of withdrawal, noting that although OSHA is withdrawing the ETS as an enforceable emergency temporary standard, it is not “withdrawing the ETS as a proposed rule.” The statement further provides that OSHA is “prioritizing its resources to focus on finalizing a permanent COVID-19 Healthcare Standard.” Although there will no longer be a vaccine-or-test mandate for large private employers, OSHA emphasized that it “strongly encourages vaccination of workers against the continuing dangers posed by COVID-19 in the workplace.”
Withdrawal Follows Supreme Court Decision Against Workplace Vaccine Mandate
Earlier this month, in a 6-3 decision, the Supreme Court blocked enforcement of the ETS, holding that the Biden Administration lacks authority to impose the vaccine-or-test rule. While Congress has delegated OSHA the authority to regulate “occupational dangers,” the Supreme Court noted that OSHA does not have the power to “regulate public health more broadly.” According to the Supreme Court, imposing a vaccine mandate impacting nearly 84 million Americans falls into the latter category. Shortly after the Supreme Court issued its ruling, Secretary of Labor Marty Walsh stated that “OSHA stands by the Vaccination and Testing Emergency Temporary Standard as the best way to protect the nation’s workforce” from COVID-19. However, as the implications of the Supreme Court’s decision began to sink in, it became increasingly apparent that the ETS was unlikely to be revived.
OSHA To Ask For Dismissal of All Pending Litigation
In light of this announcement, OSHA will ask the Sixth Circuit to dismiss all pending legal proceedings. Following its Jan. 13, 2022 decision, the Supreme Court remanded the case back to the United States Court of Appeals for the Sixth Circuit in Cincinnati for further review. Since OSHA released the ETS back in November 2021, the Biden administration has faced several lawsuits, primarily from states, private businesses, religious groups and national trade associations. The Sixth Circuit had jurisdiction over all pending lawsuits surrounding the ETS after being randomly selected in a lottery.
At this juncture, private employers can choose how they would like to proceed. They can choose to continue vaccine mandates already instituted, subject to state and local laws, discontinue vaccine mandates altogether or proceed with a strictly voluntary vaccination policy.
KJK will continue to closely monitor and report on any new developments. If you have questions about how to proceed in your workplace or would to discuss further, please contact Rob Gilmore at rsg@kjk.com or 216.736.7240.