January 27, 2022

OSHA Withdraws Its COVID-19 Vaccination and Testing Emergency Temporary Standard

OSHA has withdrawn its COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS), effective Jan. 26. The agency’s withdrawal is based on its evaluation of the U.S. Supreme Court decision to stay the ETS on Jan. 13. The Court found that the challengers of the ETS “were likely to prevail on their claims.” In its majority opinion, the Court held that requiring vaccination is an exercise of power that would need to be explicitly granted by Congress and that OSHA, in seeking to mandate public health measures, had overstepped its authority, which is limited to the workplace.

Though the vaccination and testing ETS has been withdrawn as an enforceable ETS, OSHA is not withdrawing it as a proposed rule, the agency explains in a statement dated Jan. 25. OSHA says it intends to “[prioritize] its resources to focus on finalizing a permanent COVID-19 Healthcare Standard.”

The vaccination and testing ETS, which was issued on Nov. 5, required employers with 100 or more employees to develop, implement, and enforce a mandatory COVID-19 vaccination policy. Under the ETS, employees who chose to remain unvaccinated were required to undergo regular testing for COVID-19 and wear a face covering at work. The ETS also required employers to provide paid time off for workers to get vaccinated and paid leave for workers suffering from side effects of the vaccines, and to maintain records of each test result. Employers were not required to pay for the tests.

“Notwithstanding the withdrawal of the Vaccination and Testing ETS, OSHA continues to strongly encourage the vaccination of workers against the continuing dangers posed by COVID-19 in the workplace,” the agency states in the Federal Register notice announcing the withdrawal.

Related: On Dec. 27, OSHA withdrew the non-recordkeeping portions of its other COVID-19 ETS. The COVID-19 healthcare ETS, which went into effect on June 21, was intended to protect healthcare workers from contracting SARS-CoV-2 in settings where suspected or confirmed COVID-19 patients are treated.