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The Occupational Safety and Health Administration is withdrawing the COVID-19 vaccination-and-testing emergency temporary standard it originally announced in November, the Labor Department agency said publicly Tuesday.
The announcement is scheduled to appear formally in the Federal Register tomorrow but is available online as a five-page PDF now. The withdrawal is effective upon publication.
“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 said in a statement on its website. “The agency is prioritizing its resources to focus on finalizing a permanent COVID-19 Healthcare Standard.”
OSHA added that it “strongly encourages vaccination of workers against the continuing dangers posed by COVID-19 in the workplace.”
Withdrawal follows Supreme Court ruling
The withdrawal comes after the U.S. Supreme Court on Jan. 13 temporarily halted the mandate while it continued to be considered in challenges before the 6th Circuit Court of Appeals. The High Court said that OSHA exceeded its authority in issuing such a broad mandate.
It appeared unlikely that the High Court ultimately would let the current mandate wording stand as-is should it have come before justices again, but the court majority seemed to leave the door open for a more tailored rule, writing, “Where the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are plainly permissible.”
On the same day that it stayed the OSHA mandate, the Supreme Court upheld an emergency regulation from the Centers for Medicare & Medicaid Services that requires COVID-19 vaccination of healthcare workers at federally funded facilities such as nursing homes.
Also today, OSHA asked the 6th Circuit Court of Appeals to dismiss the petitions challenging its COVID-19 vaccination-and-testing emergency temporary standard, because the withdrawal makes them moot.
Even if a new mandate doesn’t materialize from OSHA, the Labor Department has indicated that it plans to “vigorously enforce” existing rules, regulations and policies, as well as issue new ones, to ensure that employers protect their workers during the pandemic.
The OSHA vaccination-and-testing emergency temporary standard would have applied to all companies with 100 or more workers. OSHA previously said that the requirement, which called for larger employers to ensure that their employees were vaccinated or undergo regular testing and wear masks in the workplace, could affect 1.8 million workplaces — about two-thirds of the private workforce in the country — and 84 million workers across the country.
Wednesday (Jan. 19), the attorneys general from 27 states sent a letter to OSHA asking the agency to withdraw the standard. OSHA’s announcement of its planned withdrawal, dated Friday (Jan. 21), was posted online today (Jan. 25).
Separate COVID-19 healthcare standard coming
OSHA adopted its COVID-19 healthcare emergency temporary standard — which is separate from its COVID-19 vaccination-and-testing emergency temporary standard — in June, requiring assisted living communities and other healthcare settings to conduct hazard assessments and have written plans in place to mitigate the spread of the coronavirus. The workplace safety rules also required healthcare employers to provide some employees with N95 respirators and other personal protective equipment. Additionally, the standard included social distancing, employee screening, and cleaning and disinfecting protocols.
In late December, the agency withdrew the “non-recordkeeping” parts of the standard, promising to “work expeditiously to issue a final standard.”
At the time, OSHA said that while it worked on a final rule and “considers its broader infectious disease rulemaking,” it “strongly encourages all healthcare employers to continue to implement the [healthcare] ETS’s requirements in order to protect employees from a hazard that too often causes death or serious physical harm to employees.”
“Continued adherence to the terms of the healthcare ETS is the simplest way for employers in healthcare settings to protect their employees’ health and ensure compliance with their OSH Act obligations,” OSHA said in the December announcement.