By Conn Maciel Carey LLP’s COVID-19 Task Force
Earlier today, January 26, 2022, OSHA published in the Federal Register a Notice of Withdrawal of its COVID-19 Vaccination, Testing, and Face Covering ETS. After the Supreme Court’s January 13th decision in Nat’l Fed’n of Indep. Bus. v. Dep’t of Labor reinstituting the Stay of the ETS, the writing was on the wall for OSHA’s vaccinate-or-test ETS, but today’s announcement made it official. The Notice of Withdrawal does not call for comment, as it is “impracticable, unnecessary, and contrary to the public interest.” OSHA further explained that it would unnecessarily delay the resolution of ambiguity for employers and workers. So that’s that for the Vaccinate-or-Test ETS, effective immediately.
Nevertheless, this dead horse may be in store for some more beating. As you know, the day the ETS was published in the Federal Register back in November, pursuant to Sec. 6(c)(3) of the OSH Act, it became the “proposed rule” in a rulemaking that automatically kicked off to establish a permanent replacement vaccinate-or-test standard. In OSHA’s other big announcement today, the agency indicated that it has not withdrawn that rulemaking. Rather, OSHA declared its intent to move forward with a permanent rulemaking.
This was yet another fascinating development in this roller coaster. While we anticipated that OSHA would withdraw the vaccinate-or-test ETS to avoid having a full merits adjudication by the Supreme Court that would establish more concrete precedent narrowing OSHA’s rulemaking authority, we continue to be surprised to see that OSHA is continuing on with the permanent rulemaking.
Recall that the Supreme Court did not say that OSHA’s ETS exceeded the agency’s emergency rulemaking authority. Rather, the Court found that the ETS exceeded OSHA’s rulemaking authority period. But one of the main reasons the Court (at least Roberts, Kavanaugh and Coney Barrett) felt the ETS violated OSHA’s rulemaking authority was that the ETS was not tailored to workplaces that have a unique risk of COVID-19 spread. So, if a standard was crafted that focused on healthcare and certain densely-populated workplaces (e.g., meatpacking plants, high volume retail, etc.), that may be acceptable to a majority of the Court. That is our best guess as to what OSHA may be doing here, at least leaving open the possibility of finalizing a rule that is narrower in application than the all-industries ETS that is now in the wastebin.
In terms of timing, the best source we have for how long OSHA may take to finalize the conversion of an ETS to a permanent standard, is OSHA’s own timing estimate. And while OSHA has not offered a timeframe for developing a permanent vaccination standard, it did just make a public estimate for how long it will take to convert another ETS into a permanent rule – the COVID-19 ETS for Healthcare (the first COVID-19 ETS issued back in June 2021). As we described in December, OSHA withdrew its COVID-19 Healthcare ETS because it had been in effect for six months (arguably the cap on emergency “temporary” standards) and it was not making meaningful progress on the permanent replacement standard. OSHA indicated when it withdrew the healthcare ETS that it did so to focus its resources on the new Vaccinate-or-Test ETS, which had just been revived by the Sixth Circuit a few days earlier.
As a result of OSHA withdrawing that ETS, on January 5th, some national unions representing healthcare workers sued OSHA in the US Court of Appeals for the DC Circuit seeking to compel the agency to both reinstitute the ETS and finalize the permanent replacement standard within 30 days. In a brief that OSHA filed last week opposing that petition, OSHA says it is renewing work on the permanent replacement COVID-19 standard for the healthcare sector. To try to stave off a court order to complete the rule in 30 days, OSHA indicated in its brief that it could produce a final permanent ETS for healthcare in “six to nine months.”
OSHA’s brief signals that the reason OSHA delayed issuing a final healthcare standard was because it was “faced with a continuing and evolving pandemic and the need to address the hazard of COVID-19 on multiple fronts,” and determined that resources should “be directed toward other areas of urgent need, including the development of the Vaccination and Testing ETS.” But following the Supreme Court’s Jan. 13 ruling that the vaccination standard was unlawfully broad, the agency shifted again to work on a permanent healthcare rule as the best way to address workplace COVID-19 risks within the guardrails the Court seemed to set for OSHA. But, OSHA asserts in its brief, its “finite” resources and the OSH Act’s “cumbersome and time consuming” rulemaking process “render section 6(c)(3)’s six-month provision [i.e., the requirement to develop a permanent standard to replace an ETS within six months] impractical under the best conditions, and even more so during an ongoing pandemic requiring Agency action on multiple fronts.”
The rulemaking for a permanent vaccination ETS that OSHA also just announced it intended to continue working on is essentially in the same status as the rulemaking for the COVID-19 Healthcare rule. That is, the ETSs both served as a “proposed rule,” both were published in the Federal Register for a public comment period, and both comment periods have officially closed – the comment period for the vaccination rule closed just last week. So, if OSHA is actually serious about finalizing some form of vaccination and testing permanent rule, that six to nine month time estimate would be just as realistic.
Two other quick thoughts about these developments:
- A potential happy consequence of OSHA continuing its vaccinate-or-test rulemaking is that there is still a “proposed rule” sitting out there, and there is pretty well-established OSHRC jurisprudence that if an employer complies with a proposed regulation, any violation of other existing regulatory requirements (e.g., the General Duty Clause) should be characterized as, at worst, a de minimis violation (i.e., not a violation at all). That could provide for a nice defense to general duty clause citations that OSHA may issue in the near term for employer not implementing certain CDC and OSHA recommended COVID-19 practices that were not required by the ETS; e.g., masking for vaccinated workers, quarantining close contacts, requiring distancing, cleaning and disinfection, etc.
- We had a difficult strategic decision to make last week with our Employers COVID-19 Prevention Coalition – whether to follow-through with finalizing and submitting our comments about a permanent COVID-19 rule. Thankfully, we decided to finalize and submit those comments.
We will pay close attention to this and look for opportunities to impact whatever course OSHA takes.