Update as of January 26, 2022:

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) announced yesterday it is withdrawing the vaccination and testing emergency temporary standard (ETS) issued on Nov. 5, 2021, effective January 26, 2022. Although OSHA is withdrawing the vaccination and testing ETS as an enforceable emergency temporary standard, OSHA announced is not withdrawing the ETS as a proposed rule. Employers should continue to follow any state laws or regulations in effect that relate to vaccination and testing.

January 14, 2022

Yesterday, the U.S. Supreme Court reinstated a temporary stay of the federal Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard (ETS) requiring employers to implement vaccine or testing and mask mandates. The ETS was issued in November 2021 following an order from the Biden Administration that requires employers of 100 or more employees to mandate employee COVID vaccines or regular testing of unvaccinated employees. The ETS was challenged in all twelve circuit courts and ultimately these cases were consolidated, and the Sixth Circuit was designated to consider them. Prior to consolidation, the Fifth Circuit Court of Appeals issued a temporary stay of the ETS, preventing it from being implemented. The Sixth Circuit Court of Appeals then lifted the stay. Because of this split between circuit courts, the Supreme Court heard oral arguments last week and yesterday voted, in a 6-3 decision, to reinstate the stay. Although this means the ETS cannot be enforced for now, employers may be asking what comes next. The case will now return to the Sixth Circuit Court of Appeals to determine whether the ETS is a valid rule.

If the Sixth Circuit, and ultimately the Supreme Court, rules on the merits of the case and decides the ETS is invalid, OSHA may still have options for implementing a similar vaccine or testing and mask mandate. The ETS was always intended to be temporary and later replaced by a permanent rule. OSHA may decide to publish a new rule that goes through the formal rulemaking process and seeks to address some of the Supreme Court’s expressed concerns about the ETS. This process could result in a new regulation published later this year.

OSHA has also indicated it will continue to hold employers accountable for the safety of their employees in the workplace. In response to the Supreme Court decision, U.S. Secretary of Labor Marty Walsh issued a statement, reading in part:

The commonsense standards established in the ETS remain critical, especially during the current surge, where unvaccinated people are 15-20 times more likely to die from COVID-19 than vaccinated people. OSHA will be evaluating all options to ensure workers are protected from this deadly virus.

We urge all employers to require workers to get vaccinated or tested weekly to most effectively fight this deadly virus in the workplace. Employers are responsible for the safety of their workers on the job, and OSHA has comprehensive COVID-19 guidance to help them uphold their obligation.

Regardless of the ultimate outcome of these proceedings, OSHA will do everything in its existing authority to hold businesses accountable for protecting workers ….

The bottom line, in the short term, is that employers are not currently required to comply with the ETS. We will continue to monitor the ETS litigation and any formal rulemaking process and provide updates as necessary. If you have other questions about the ETS or other state or local vaccine, testing, or mask requirements, please contact us.