By A. Scott Hecker, Brent I. ClarkJames L. Curtis, Benjamin D. Briggs, Mark A. LiesAdam R. YoungPatrick D. Joyce, Daniel R. Birnbaum, and Craig B. Simonsen

Seyfarth Synopsis: OSHA has withdrawn its private employer COVID-19 Vaccination and Testing ETS, effective Tuesday, January 25, 2022.

On Tuesday, January 25, 2022, the federal Occupational Safety and Health Administration (“OSHA”) announced the withdrawal of its COVID-19 Vaccination and Testing Emergency Temporary Standard (“ETS”). The Federal Register posted an advanced copy of the notice for public inspection ahead of its official publication on January 26, 2022.

OSHA’s ETS had a long and winding road to withdrawal, having been stayed almost immediately by the U.S. Court of Appeals for the Fifth Circuit ­­– the rule, published on November 5, 2021, was enjoined the next day. The U.S. Court of Appeals for the Sixth Circuit lifted that stay, which led petitioners to file emergency applications with the U.S. Supreme Court to re-stay the ETS. After hearing argument on those applications on January 7, 2022, the U.S. Supreme Court re-stayed the ETS in an opinion issued on January 13.

No longer able to enforce the ETS, OSHA needed to decide whether to continue to pursue a decision on the merits before the Sixth Circuit. Even if OSHA received a favorable ruling before the Sixth Circuit, long-term success seemed unlikely, given the Supreme Court’s denunciation of the ETS’s overbroad scope. By law, the ETS expires on May 5, 2022, leaving little time to conclude merits proceedings before both the Sixth Circuit and the Supreme Court. Further, OSHA may be concerned about the Supreme Court issuing a merits decision that may limit OSHA’s ability to issue new ETSs in the future.

In the end, OSHA determined to pursue alternative avenues to address alleged COVID-related hazards. OSHA explicitly advised that it “is not withdrawing the ETS as a proposed rule,” meaning it could continue to pursue a broad, permanent COVID-19 or infectious disease standard. A permanent COVID-19 or infectious disease standard would entail a lengthy and contentious notice and comment period, and likely more litigation. But, for now, it appears “[t]he agency is prioritizing its resources to focus on finalizing a permanent COVID-19 Healthcare Standard,” so the likelihood of any COVID-19 standard based on the withdrawn ETS is unclear.

We expect OSHA to continue inspecting workplaces for COVID-19 hazards and citing employers for violations of existing OSHA standards that could implicate COVID (e.g., PPE, respiratory protection, sanitation, bloodborne pathogens, employee access to medical and exposure records, and recordkeeping/reporting) or use the OSH Act’s General Duty Clause, all while continuing to execute on its COVID-19 National Emphasis Program. OSHA may also pursue a new, more targeted emergency standard, which the Supreme Court seemed to sanction in its January 13, 2022 opinion.

The COVID-19 landscape continues to shift, so please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team for more information on this or any related topic. You can also receive additional insights from Seyfarth subject matter experts by registering for the Firm’s January 27, 2022 webinar, “What Now? COVID-19 Vaccination’s Ever-Shifting Compliance Landscape.”