On November 5, 2021, OSHA issued an Emergency Temporary Standard on Vaccination and Testing (“ETS”) in an effort to protect unvaccinated employees of large employers from the risk of contracting COVID-19 by encouraging vaccination. The ETS required covered employers to implement and enforce either a mandatory vaccination policy or a policy that required employees to undergo regular testing and to wear a face covering while at work.
In response to the January 13 decision where the Supreme Court stayed OSHA’s ETS (finding that challengers could likely prevail on their claims), OSHA withdrew the ETS as an enforceable emergency standard. The official withdrawal went into effect on January 26. Although OSHA is withdrawing this standard, it is not withdrawing the ETS as a proposed rule. This could potentially mean that OSHA may still pursue other forms of rule to require employers to mandate vaccination or testing, or that OSHA could attempt to impose ETS-like requirements on a smaller scale. While OSHA may have withdrawn the ETS as an enforceable standard, the CMS vaccine mandate is still in effect for Medicare- and Medicaid-participating healthcare facilities across the nation. The Supreme Court opinion in that case allows for the CMS vaccine mandate for health care workers at facilities and suppliers covered by the CMS regulation to be fully vaccinated or approved for an exemption by February 28 to still be enforceable.