January 25, 2022

OSHA Withdraws Vaccinate or Test Emergency Temporary Standard

Federal OSHA announced today that it is withdrawing its Emergency Temporary Standard (“ETS”) which required employers with 100 or more employees to require workers to either be vaccinated against COVID-19 or to test weekly.  The withdrawal takes effect January 26, 2022.

Multiple Groups including 26 states filed civil suits in the Fifth, Sixth, Seventh, Eighth, and D.C. Circuits challenging OSHA’s ETS.  The plaintiffs requested an injunction preventing implementation or enforcement of the ETS pending the litigation.  After several rounds of litigation, the U.S. Supreme Court issued a decision on January 13, 2022, reinstating the stay of the ETS pending litigation.

The withdrawal of the ETS represents an acknowledgement by OSHA that the opponents of the ETS were likely to prevail in the underlying lawsuits.  OSHA’s announcement also indicates a plan to pivot towards finalizing a permanent COVID-19 Healthcare Standard.  This permanent standard is expected to include a more narrowly tailored vaccination and testing requirement more in line with the US Supreme Court’s acknowledgement of the agency’s authority to regulate risks associated with working in particularly crowded or cramped environments where the virus poses a special danger to workers.

OSHA’s decision to withdraw the ETS does not prevent state plan states like Oregon, Washington and California from implementing their own general vaccinate or test rule.  However, it is highly unlikely that state-plan states will go down that road in light of the fate of Federal OSHA’s ETS.  Oregon has already announced it is not going to proceed with its own rule.

If you are an Employer and have questions and need assistance, please contact the lawyers at Cummins, Goodman, Denley & Vickers at (503) 476-8200.

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