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 In OSHA’s other big announcement today, the agency indicated that it has not withdrawn that rulemaking.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 Continue reading