OSHA Issues COVID-19 Vaccination and Testing Emergency Temporary Standard for Employers with 100 or More Employees | Practical Law

OSHA Issues COVID-19 Vaccination and Testing Emergency Temporary Standard for Employers with 100 or More Employees | Practical Law

On November 4, 2021, the Occupational Safety and Health Administration (OSHA) issued its COVID-19 vaccination and testing emergency temporary standard (ETS) (29 C.F.R. § 1910.501). The ETS was published in the Federal Register on November 5, 2021 (86 Fed. Reg. 61402 (Nov. 5, 2021)). The ETS requires employers with 100 or more employees to implement a mandatory COVID-19 vaccination policy. Alternatively, covered employers may give employees the option of remaining unvaccinated if they submit to weekly COVID-19 testing and masking. The ETS preempts any state or local laws or directives prohibiting vaccine, testing, or face mask mandates.

OSHA Issues COVID-19 Vaccination and Testing Emergency Temporary Standard for Employers with 100 or More Employees

by Practical Law Labor & Employment
Law stated as of 25 Jan 2022 • USA (National/Federal)
On November 4, 2021, the Occupational Safety and Health Administration (OSHA) issued its COVID-19 vaccination and testing emergency temporary standard (ETS) (29 C.F.R. § 1910.501). The ETS was published in the Federal Register on November 5, 2021 (86 Fed. Reg. 61402 (Nov. 5, 2021)). The ETS requires employers with 100 or more employees to implement a mandatory COVID-19 vaccination policy. Alternatively, covered employers may give employees the option of remaining unvaccinated if they submit to weekly COVID-19 testing and masking. The ETS preempts any state or local laws or directives prohibiting vaccine, testing, or face mask mandates.
NOTE: The OSHA ETS has been withdrawn as an emergency temporary standard effective January 26, 2022. It remains in effect as a proposed rule subject to notice and comment. For updated developments regarding the status of the OSHA ETS, see Box, Legal Challenges to the OSHA ETS.
On November 4, 2021, the Occupational Safety and Health Administration (OSHA) announced that its issuance of a new emergency temporary standard (ETS) requiring that all employers with 100 or more employees either:
  • Develop, implement, and enforce a mandatory COVID-19 vaccination policy.
  • Adopt a policy allowing employees to choose either to:
    • get vaccinated against COVID-19; or
    • produce a negative test result at least weekly before coming to work and wear a face covering.
(29 C.F.R. § 1910.501.)
The ETS was published in the Federal Register on November 5, 2021 and is effective as of that date (86 Fed. Reg. 61402 (Nov. 5, 2021)). Employers must comply with the ETS by December 6, 2021, except that they have until January 4, 2022 to comply with the testing requirements for employees who are not fully vaccinated (29 C.F.R. § 1910.501(m); see Testing Requirement). (Although the unpublished ETS stated that initial compliance with most sections was required within 30 days of publication in the Federal Register, or December 5, the rule that was actually published specifically provides December 6 as the compliance date.) The ETS will initially remain in effect for six months from publication.
OSHA also published additional resources for employers, including a fact sheet and FAQs clarifying certain provisions of the ETS (see OSHA: COVID-19 Vaccination and Testing ETS website).
This Legal Update summarizes the key provisions of the ETS, as clarified by OSHA's FAQs.

Coverage and Scope

Covered Employers

The ETS covers most private employers with 100 or more employees at any time while the ETS is in effect.
The ETS does not cover:
(29 C.F.R. § 1910.501(b)(1), (2).)
The FAQs clarify that when counting employees, employers must include:
  • Part-time employees.
  • Temporary workers (if directly employed by the employer).
  • Seasonal workers.
Employers must count employees at all locations, including those who work remotely. Independent contractors, however, are not included in the employee count for purposes of the ETS.

Covered Employees

The ETS applies to all employees of covered employers, except employees:
  • Who do not report to a workplace where other individuals, such as coworkers or customers, are present.
  • While working from home.
  • Who work exclusively outdoors. The FAQs clarify that working "exclusively outdoors" requires that the employee must:
    • work outdoors on all workdays;
    • not routinely occupy vehicles with other employees as part of work duties; and
    • work outdoors for the entire workday except for de minimis time spent indoors where other individuals may be present.
These individuals must be counted, however, when determining employer size for purposes of coverage under the ETS.
(29 C.F.R. § 1910.501(b)(3); FAQs Questions 2.A.6., 2.A.11, 2.B.)

Federal Preemption

The ETS preempts any state and local requirements that are inconsistent with its requirements, including laws or directives that ban or limit employers' authority to require vaccination, face covering, or testing, regardless of the number of employees (29 C.F.R. § 1910.501(a)).

Written Employer Policy Required

All covered employers must establish, implement, and enforce either:
(29 C.F.R. § 1910.501(d).)

Mandatory Vaccination Policy

The ETS defines a mandatory vaccination policy as one requiring all employees to be fully vaccinated and new employees to be fully vaccinated as soon as practicable, with limited specified exceptions. Exceptions apply only to employees:
  • For whom:
    • a COVID-19 vaccine is medically contraindicated; or
    • medical necessity requires a delay in vaccination.
  • Who are legally entitled to a reasonable accommodation under federal civil rights laws because they have a disability or sincerely held religious beliefs, practices, or observances that conflict with the COVID-19 vaccination requirement.
(29 C.F.R. § 1910.501(c); see also Practice Note, Vaccination in the Workplace: Reasonable Accommodation from Vaccination Requirement: Disability and Religion and Standard Documents, Employee Vaccination Policy (Mandatory): Drafting Note: Accommodation and Exemption Requests and Employee Vaccination Accommodation and Exemption Form.)
Employees who are not fully vaccinated because they are entitled to an exception or reasonable accommodation must comply with the testing and face covering requirements applicable to employees who opt not to get vaccinated under an employee choice policy (see Employee Choice Testing Alternative Policy). However, if an employee cannot get vaccinated, and cannot comply with the testing and face mask requirements because of a disability or sincerely held religious belief, practice or observance, the employee may be entitled to a reasonable accommodation, absent an undue hardship.
The ETS does not specifically allow exceptions for employees who may be entitled to a reasonable accommodation under a state or local civil rights law, presumably because the ETS preempts state and local law.

Employee Choice Testing Alternative Policy

An employer may alternatively comply with the ETS by establishing, implementing, and enforcing a written policy that gives employees the choice of getting vaccinated against COVID-19 or complying with a combination of weekly testing and face covering requirements.

Testing Requirement

Any employee who is not fully vaccinated must comply with specific COVID-19 testing protocols. The ETS defines which tests may be used to comply with these requirements.
The ETS requires testing as follows:
  • An employee who reports at least once every seven days to a workplace where other individuals are present must:
    • be tested for COVID-19 at least once every seven days; and
    • provide documentation of the most recent COVID-19 test result no later than the seventh day after the employee last provided a test result.
  • An employee who does not report to a workplace where other individuals are present for seven or more days must:
    • be tested for COVID-19 within seven days before returning to the workplace; and
    • provide documentation of that test result at the time of the employee's return.
(29 C.F.R. § 1910.501(g)(1).)
An employee who completes the entire primary vaccination series by January 4, 2022 does not have to be tested, even if the two-week waiting period required to meet the definition of fully vaccinated has not yet passed (29 C.F.R. § 1910.501(m)).
Employees do not need to comply with mandatory vaccination requirement, and therefore do not need to get tested, if they:
  • Work from home.
  • Do not report to a workplace where others are present.
  • Work exclusively outdoors.
The ETS does not require employers to pay for any costs associated with testing, but recognizes that other laws or agreements may require it.
Employees who fail to provide documentation of a COVID-19 test result are not permitted in the workplace until they provide one. However, an employee who has tested positive for COVID-19 or been diagnosed with COVID-19 is exempt from the testing requirement for 90 days. (29 C.F.R. § 1910.501(g)(2), (3).)
An employee's residence is not a workplace (29 C.F.R. § 1910.501(c)).

Face Covering Requirement

In addition to the testing requirement, employees who are not fully vaccinated must wear face coverings when indoors or in a vehicle with another person for work purposes, except:
  • When alone in a room with floor to ceiling walls and a closed door.
  • For a limited time:
    • while eating or drinking at the workplace; or
    • for identification purposes to comply with safety and security requirements.
  • While wearing a respirator or face mask.
  • Where the employer can show wearing face coverings is infeasible or creates a greater hazard that would excuse compliance with this requirements, such as when:
    • it is important to see the employee's mouth;
    • the work requires the use of the employee's uncovered mouth; or
    • wearing a face covering presents a risk of serious injury or death to the employee.
Employers must ensure that employees properly wear face coverings and replace them if wet, soiled, or damaged. Employers generally may not prevent employees from voluntarily wearing a face covering or face mask, except for safety purposes. (29 C.F.R. § 1910.501(i).)
To be compliant, a face covering must:
  • Completely cover the nose and mouth.
  • Be made with two or more layers of a breathable tightly woven fabric; however, clear face coverings or coverings with a clear plastic panel may be used to facilitate communications with people who are deaf or hearing impaired.
  • Be secured to the head with ties, ear loops, or elastic bands that go behind the head; however, gaiters may qualify if they have two layers of fabric or are folded to make two layers.
  • Fit snugly over the nose, mouth, and chin with no large gaps on the outside of the face.
  • Be made of solid material without slits, exhalation valves, visible holes, punctures, or other openings.
(29 C.F.R. § 1910.501(c).)
The ETS does not specifically require employers to pay any costs associated with the face covering requirement but recognizes that other laws or agreements may require this payment (see State Business Expense Reimbursement Laws Chart: Overview).

Paid Time Off and Other Employer Support

Employers must provide employees with both:
  • A reasonable amount of time for getting each primary vaccination dose or doses. The FAQs clarify that employers cannot require employees to use accrued sick or vacation time for this purpose.
  • Up to 4 hours of paid time, including travel time, at the employee's regular rate of pay for getting each primary dose. The FAQs clarify that this pay is only required if the employee gets vaccinated during regular working hours.
The FAQs further clarify that although employers must pay employees for travel time spent to get vaccinated (if during working hours), employers need not reimburse employees for travel expenses.
Employers also must provide employees reasonable time off and paid sick leave to recover from side effects experienced after each primary vaccination dose (29 C.F.R. § 1910.501(f)). The FAQs state that employers may cap the time available for recovering side effects and that a cap of two days per dose is generally reasonable.
The FAQs clarify that an employer may require an employee to use accrued paid sick leave to recover from side effects, but may not require employees to:
  • Use accrued vacation time if the employer provides separate sick leave and vacation leave.
  • Take an advance against paid sick time that is not yet accrued.
Note that some state and local laws, including emergency COVID-19 leave laws, may require payment for getting vaccinated, recovering from side effects, or both (see Paid Sick Leave State and Local Laws Chart: Overview and COVID-19: Employment Law and Development Tracker).

Determination of Employee Vaccination Status

The ETS requires that employers determine the vaccination status of each employee, including whether the employee is fully or partially vaccinated. The employer must require the employee to provide acceptable proof of vaccination status, which may be any of the following:
  • An immunization record from a health care provider or pharmacy.
  • A copy of the COVID-19 Vaccination Record Card.
  • A copy of medical records documenting the vaccination.
  • A copy of immunization records from a public health, state, or tribal immunization information system.
  • A copy of any other official documentation stating:
    • the type of vaccine administered;
    • the date or dates each dose was administered; and
    • the name of the health care professional or clinic site administering each vaccine dose.
(29 C.F.R. § 1910.501(e)(2).)
If the employee cannot provide proof in any of these forms, the employer may accept a signed and dated statement by the employee:
  • Attesting to their vaccination status as fully vaccinated or partially vaccinated.
  • Attesting that they have lost and are otherwise unable to produce proof otherwise required by the ETS.
  • Including the following language: "I declare (or certify, verify, or state) that this statement about my vaccination status is true and accurate. I understand that knowingly providing false information regarding my vaccination status on this form may subject me to criminal penalties."
(29 C.F.R. § 1910.501(e)(2)(vi).)
Employees who do not provide acceptable proof in one of these forms must be treated as unvaccinated for purposes of the ETS, and therefore subject to regular testing and face covering requirements (29 C.F.R. § 1910.501(e)(3)).

Employer Recordkeeping Requirements

The ETS requires employers to keep records of:
  • An employee's proof of vaccination status.
  • COVID-19 test results presented by the employee or conducted by the employer.
These records are treated as medical records and must be kept confidential. (29 C.F.R. § 1910.501(g)(4), (e)(4).)

Elements of a Compliant Vaccination Policy

Although not directly specified in the ETS, the FAQs suggest that to ensure an employer's vaccination policy is comprehensive and effective, the policy should address:
  • Requirements for COVID-19 vaccination.
  • Applicable exclusions from the written policy, such as:
    • medical contraindications;
    • medical necessity requiring delay in vaccination; or
    • reasonable accommodations for workers with disabilities or sincerely held religious beliefs.
  • Information on determining an employee's vaccination status and how this information will be collected.
  • Paid time and sick leave for vaccination purposes.
  • Notification of positive COVID-19 tests and removal of COVID-19 positive employees from the workplace.
  • Information to be provided to employees.
  • Disciplinary action for employees who do not abide by the policy.
  • The policy's effective date.
  • An explanation of who is covered by the policy.
  • Applicable deadlines for compliance.
  • Procedures for compliance and enforcement.

Additional Requirements of the ETS

The ETS also specifies requirements for:
  • Employees notifying their employer of a positive COVID-19 test and protocols for removing and excluding them from the workplace (29 C.F.R. § 1910.501(h)).
  • Employers providing information to employees about the ETS and COVID-19 vaccines generally (29 C.F.R. § 1910.501(j)).
  • Employers reporting COVID-19 fatalities and hospitalizations to OSHA (29 C.F.R. § 1910.501(k)).
  • Employers providing vaccination and testing records of an employee to that employee (29 C.F.R. § 1910.501(l)).
For more on COVID-19 vaccination, see Practice Note, Vaccination in the Workplace.
For more on Practical Law's coverage of employment-related legal developments concerning COVID-19 and vaccination rules specifically, see COVID-19: Employment Law and Development Tracker: Vaccine Mandates and Prohibitions.

UPDATE

On November 12, 2021, the Secretary of Labor ratified the ETS by signing a ratification that was published in the Federal Register on November 18, 2021 (86 FR 64366 (Nov. 18, 2021)).

Legal Challenges to the OSHA ETS

Within hours of OSHA's publication of the ETS in the Federal Register, several states, business groups, and other plaintiffs began filing lawsuits challenging the validity of the ETS. Persons injured by a standard issued by OSHA may challenge its validity by filing suit directly in a federal appeals court (29 U.S.C. § 655(f)). Within a day of its issuance, the ETS was subject to a temporary nationwide stay issued by the Fifth Circuit.
Challenges to the ETS were also filed in the:
  • First Circuit. Petition for review filed by building trades union (Mass. Bldg. Trades Council v. OSHA, Docket No. 21-1926 (1st Cir. Nov. 9, 2021)).
  • Second Circuit. Petition for review filed by labor union (Service Emps. Int'l Union v. OSHA, Docket No. 21-2800 (2d Cir. Nov. 9, 2021))
  • Third Circuit. Petition for review filed by teacher's union (AFT Pennsylvania v. OSHA, Docket No. 21-3088 (3d Cir. Nov. 10, 2021)).
  • Fourth Circuit. Petitions for review filed by labor union (United Assoc. of Journeymen & Apprentices of the Plumbing & Pipe Fitting Indus. of the United States v. OSHA, Docket No. 21-2262 (4th Cir. Nov. 9, 2021) and trade association (Associated Gen. Contractors of Am. v. OSHA, Docket No. 21-2283 (4th Cir. Nov. 15, 2021)).
  • Fifth Circuit. Petition for review filed by Texas, Louisiana, Mississippi, Utah, and South Carolina, various businesses, and other plaintiffs on November 5, 2021.
    • In a brief, per curiam opinion, the Fifth Circuit found that the plaintiffs' petition "gave cause to believe that there are grave statutory and constitutional issues with the mandate" and therefore stayed the ETS pending further action by the court. Briefing is scheduled to be completed by November 9, 2021. (BST Hldgs, L.L.C. v. OSHA, (5th Cir. Nov. 6, 2021) (Docket No. 21-60845).)
    • On November 12, 2021, after full briefing, the Fifth Circuit continued the stay (BST Hldgs, L.L.C. v. OSHA, (5th Cir. Nov. 12, 2021)).
  • Sixth Circuit. Petitions for review filed by:
    • Kentucky, Idaho, Kansas, Ohio, Oklahoma, Tennessee and West Virginia (Commonwealth of Ky. v. OSHA, Docket No. 21-4031 (6th Cir. Nov. 5, 2021)). Petitioners seek an immediate stay of the allegedly illegal mandate on the grounds that it exceeds OSHA's authority and will cause irreparable harm. They seek expedited briefing and request a ruling by November 12, 2021 so they can seek relief in the US Supreme Court if necessary; and
    • other private plaintiffs, including Bentkey Servs. LLC v. OSHA, Docket No. 21-4027 (6th Cir. Nov. 4, 2021), Phillips Mfg. & Tower et al. v. OSHA, Docket No. 21-4028 (Nov. 4, 2021), Answers in Genesis, Inc. v. OSHA, Docket No. 21-4032 (6th Cir. Nov. 5, 2021), and Southern Baptist Theological Seminary v. OSHA, Docket No. 21-4033 (6th Cir. Nov. 5, 2021) (seeking emergency stay)).
  • Seventh Circuit. Petitions for review filed by:
    • Indiana (State of Indiana v. OSHA, Docket No. 21-3066 (7th Cir. Nov. 5, 2021)) (see also Indiana Attorney General's Office Press Release, November 4, 2021); and
    • other private plaintiffs (Tankcraft Corp. v. OSHA, Docket No. No. 21-3058 (7th Cir. Nov. 5, 2021) (court takes request for emergency stay under advisement and requires opposition briefs by November 12, 2021)).
  • Eighth Circuit. Petitions for review filed by:
    • State Attorneys General of Missouri, Arizona, Montana, Nebraska, Arkansas, Iowa, North Dakota, South Dakota, Alaska, New Hampshire, and Wyoming, and other private plaintiffs claiming that the "mandate is unconstitutional, unlawful, and unwise." The petitioners seek an emergency stay (Missouri v. OSHA, Docket No. 21-3494 (8th Cir. Nov. 5, 2021) (petition).
    • other private plaintiffs, including Job Creators Network et al. v. OSHA, Docket No. 21-3491 (8th Cir. Nov. 4, 2021), DTN Staffing, Inc. et al. v. OSHA, Docket No. 21-3540 (8th Cir. Nov. 9, 2021), and MFA Inc. et al. v. OSHA, Docket No. 21-3556 (8th Cir. Nov. 12, 2021).
  • Ninth Circuit. Petitions for review filed by labor unions, including Media Guild of the West, the News Guild-Commc'ns Workers of Am., AFL-CIO, Local 39213 v. OSHA, No. 21-71374 (9th Cir. Nov. 10, 2021), Nat'l Assoc. of Broad. Emps. & Technicians, AFL-CIO, Local 51 v. OSHA, No. 21-71370 (9th Cir. Nov. 9, 2021), and Union of Am. Physicians v. OSHA, Docket No. 21-71379 (9th Cir. Nov. 12, 2021).
  • Tenth Circuit. Petition for review filed by labor union (Denver Newspaper Guild et al. v. OSHA, Docket No. 21-9592 (10th Cir. Nov. 15, 2021)).
  • Eleventh Circuit. Petitions for review filed by:
    • State Attorneys General of Alabama, Georgia, Florida, business associations, and several private plaintiffs (see Alabama Attorney General's Office Press Release, November 5, 2021). Petitioners claim that the ETS "exceeds [OSHA's] statutory authority, fails to comply with the standards for issuing an ETS, and conflicts with the First Amendment and the Religious Freedom Restoration Act" (State of Fla. v. OSHA, Docket No. 21-13866 (11th Cir. Nov. 5, 2021) (petition)).
    • other private plaintiffs, including Associated Builders & Contractors, Inc. et al. v. OSHA, No. 21-13910 (11th Cir. Nov. 9, 2021) and FabArc Steel Supply, Inc. et al. v. OSHA, No. 21-13900 (11th Cir. Nov. 8, 2021).
  • D.C. Circuit. Petitions for review filed by:
    • The Republican National Committee, claiming that the ETS "is promulgated in excess of OSHA's statutory power and is contrary to constitutional power" (Republican Nat'l Comm. v. OSHA, Docket No. 21-1215 (D.C. Cir. Nov. 5, 2021) (petition)).
    • other plaintiffs, including United Food & Commercial Workers Int'l et al. v. OSHA, Docket No. 21-1219 (D.C. Cir. Nov. 8, 2021) and Nat'l Association of Homebuilders of the US v. OSHA, Docket No. 21-1232 (Nov. 15, 2021).

Consolidated Appeal in the Sixth Circuit and Stay Issued by Supreme Court

The challenges to the OSHA ETS were consolidated by the Judicial Panel on Multidistrict Litigation. On November 16, the US Court of Appeals for the Sixth Circuit "won" the lottery to hear the consolidated legal challenges to the OSHA ETS (In re OSHA, Interim Final Rule, MCP No. 165 (J.P.M.L. Nov. 16, 2021)). The Sixth Circuit consolidated proceeding has been docketed as Case No. 21-7000.
OSHA filed an Emergency Motion to Dissolve the Stay and the court set an expedited briefing schedule. On December 3, 2021, the Court denied OSHA's motion to further expedite the briefing schedule. The Court also denied motions to transfer the case back to the Fifth Circuit and the D.C. Circuit.
On December 15, 2021, the en banc Court of the Sixth Circuit denied various petitions for initial en banc review of the challenges to the OSHA ETS. The Court's vote was divided eight against and eight in favor of initial en banc review, with lengthy dissents issued by Chief Judge Sutton and Circuit Judge Bush outlining why the Fifth Circuit stay should remain in place (In re MCP No. 165, 20 F.4th 264 (6th Cir. 2021)).
On December 17, 2021, the Sixth Circuit panel issued an opinion dissolving the Fifth Circuit stay ( (6th Cir. Dec. 17, 2021)). The same day, twenty-six trade associations filed an emergency application for an immediate stay of the OSHA ETS with the US Supreme Court. The US Supreme Court heard oral arguments on the stay application on January 7, 2022.
The OSHA ETS technically became effective (except for the testing requirement) on January 10, 2022. However, on January 13, 2022, the US Supreme Court issued a stay of the OSHA ETS, pending disposition of petitions for review in the Sixth Circuit and the applicants' petitions for writs of certiorari, if timely sought (Nat'l Federation of Independent Business v. OSHA, , at *5 (U.S. Jan. 13, 2022)).

OSHA Announcements Regarding Enforcement of the ETS

While the Fifth Circuit's stay was in effect, OSHA "suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation."
Following the Sixth Circuit's order lifting the stay, OSHA announced as follows:
"To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance." (Content later removed from website.)
On January 13, 2022, after the Supreme Court issued its stay of the ETS, US Secretary of Labor Marty Walsh issued the following statement:
"I am disappointed in the court's decision, which is a major setback to the health and safety of workers across the country. OSHA stands by the Vaccination and Testing Emergency Temporary Standard as the best way to protect the nation's workforce from a deadly virus that is infecting more than 750,000 Americans each day and has taken the lives of nearly a million Americans.
OSHA promulgated the ETS under clear authority established by Congress to protect workers facing grave danger in the workplace, and COVID is without doubt such a danger. The emergency temporary standard is based on science and data that show the effectiveness of vaccines against the spread of coronavirus and the grave danger faced by unvaccinated workers. 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, including under the Covid-19 National Emphasis Program and General Duty Clause."
(Content later removed from website.)

OSHA Withdraws Vaccination and Testing ETS as an Enforceable Emergency Temporary Standard, But Not as a Proposed Rule

On January 25, 2022, OSHA announced that it is withdrawing the OSHA ETS as an enforceable emergency temporary standard. The withdrawal is effective on January 26, 2022, when it is to be published in the Federal Register. The withdrawal does not affect the status of the ETS as a proposed rule, subject to notice and comment. OSHA stated that it is " prioritizing its resources to focus on finalizing a permanent COVID-19 Healthcare Standard" (OSHA: COVID-19 Vaccination and Testing ETS).
Practical Law will continue to monitor further developments and provide updates here.
For more on legal challenges to other federal vaccine mandates, see COVID-19: Employment Law and Development Tracker: Federal Vaccine Laws and Directives.