OSHA withdraws private company vaccine-or-test ETS
The withdrawal of the mandate becomes effective Jan. 26, but OSHA is not abandoning its efforts to institute a permanent standard.
A federal vaccination mandate aimed at requiring companies with more than 100 employees to have staff vaccinate or test weekly for COVID-19 is off again as the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) is withdrawing its temporary vaccination and testing emergency standard (ETS).
But, unlike prior pauses via court injunctions, this time the Biden administration itself has halted the vaccine-or-test mandate — in a move that’s pleased Georgia’s top attorney but frustrated some labor and employment lawyers.
First issued on Nov. 4, the standard “aimed to protect unvaccinated employees of large employers with 100 or more employees from workplace exposure to coronavirus.” OSHA had planned on rolling out its emergency temporary standard requiring applicable employers by Dec. 5, to mandate masks for all unvaccinated employees working in person and to have them provide weekly negative COVID-19 tests, beginning Jan. 4.
But a start-stop cycle, spurred by repeated injunctions, stifled the federal effort.
Georgia AG belebrates
Georgia Attorney General Chris Carr has often teamed with Gov. Brian Kemp to fight against the Biden administration’s vaccination mandates, arguing authoritative overreach in multiple legal complaints. On Dec. 18, he filed an application with the U.S. Supreme Court requesting an immediate stay of the OSHA mandate.
Carr joined a coalition of attorneys general in sending a letter to OSHA demanding the agency permanently withdraw its vaccine-or-test mandate after the U.S. Supreme Court granted its stay on Jan. 13.
The withdrawal of the vaccine-or-test mandate becomes effective Jan. 26, but in a statement OSHA clarified it’s not abandoning its efforts to institute a permanent safety standard.
“Although OSHA is withdrawing the vaccination and testing [emergency testing standard] as an enforceable emergency temporary standard, the agency is not withdrawing the [emergency testing standard] as a proposed rule,” the OSHA statement read. “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.”
‘Left with a patchwork’
The withdrawal didn’t surprise Atlanta labor and employment attorney Brett Coburn.
The Alston & Bird partner said the Supreme Court’s Jan. 13 decision had been limited to ruling on the challengers’ request for an emergency stay but that the substance of the majority opinion from the high court “made it practically impossible for the Sixth Circuit to uphold OSHA’s vaccine-or-test mandate on the merits.”
“While there could have been further litigation before the Sixth Circuit on the merits of the challenges, it made sense that OSHA has decided to withdraw the rule and focus its efforts on other COVID protection efforts,” Coburn said. “We will likely see an uptick in OSHA’s efforts to rely on the OSH Act’s general duties provision as a more general way of attempting to regulate employers’ preventative measures in response to COVID.”
With the OSHA emergency temporary standard withdrawn, Coburn said employers are “left with a patchwork of state and local laws that really go in two completely different directions.” He encouraged employers with operations across multiple jurisdictions to keep track of what they are required to and permitted from doing in various locations.
“Some states are, to one extent or another, prohibiting employers from mandating vaccines for their employees. On the other hand, some places, [like] New York City, are requiring vaccines for all employees,” Coburn said. “There may very well be additional requirements on both sides of the fence coming in 2022. And in jurisdictions that have neither vaccine requirements nor prohibitions, employers will have to decide how they want to set company policy.”
‘Making us look bad’
Based in Saddle Brook, New Jersey, Hall Booth Smith partner Jacqueline Voronov said such state vaccine requirements existed for health care workers in the Garden State. Despite the withdrawal of OSHA’s emergency temporary standard Tuesday, she suggested employers refrain from viewing the rescission as the conclusion of the agency’s efforts.
“I do believe that OSHA still has this very much on its radar,” Voronov said. “The safest thing to do would be to use what the rescinded guidelines are as a sort of best practices road map, particularly if you work in health care.”
Voronov pointed out that the federal Centers for Medicare & Medicaid Services’ COVID-19 vaccination mandate for health care facilities’ employees remained after the U.S. Supreme Court lifted two injunctions on Jan. 13.
She said the on-again, off-again nature of the contested federal vaccination efforts has been tiresome for clients seeking answers and attorneys providing advice.
“It’s tough when you’re trying to run your business and you don’t know which way you’ve got to go on any given day,” Voronov said. “It’s even tougher when you’ve got to counsel a client and tell them, ‘You know, that stuff that I told you last week? Things are different now.’ It’s making us look bad.”
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