OSHA Abandons “Vaccinate-or-Test” Rule


Given the recent Supreme Court loss, the Biden Administration announced today that it will be withdrawing its COVID-19 “vaccinate-or-test” Emergency Temporary Standard (“ETS” or “Rule”) for private employers with 100 or more workers.  As such, the Administration will also be asking the Sixth Circuit Court of Appeals to dismiss the case.

On November 5, 2021, the Occupational Safety and Health Administration (“OSHA”) issued the ETS that mandated employers with 100 or more employees implement a requirement that its workers be fully vaccinated or submit to a weekly COVID-19 test. Twelve days ago, on January 13, 2022, the majority of the United States Supreme Court held that OSHA likely lacked the authority to implement and enforce the Rule.

The decision to voluntarily withdraw the ETS was certainly strategic, since it was unlikely that the Biden Administration would have prevailed if it proceeded with litigating the Rule in its original form.  Moreover, proceeding with the case before the Sixth Circuit may have imposed additional restrictions on the Administration’s ability regarding future regulations, especially in light of the Supreme Court’s recent opinion. By revoking the ETS, the Administration will most likely attempt to issue a less-restrictive standard that is more closely tailored to existing OSHA regulations regarding workplace safety.

Although the Administration has not committed to re-issuing a different, narrower rule, the Supreme Court’s ruling did provide a roadmap for OSHA to do so.  For example, a future rule may specifically target the window created by the Supreme Court, such as permitting “occupation specific” rules or guidelines. These rules could be based on the role of the employee or the operations of the business, as opposed to applying to every single business of a certain size.

As we have since early November, 2021, Airdo Werwas will continue to diligently monitor these legal developments and will continue to provide guidance as this matter unfolds. 

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