Written By ESR News Blog Editor Thomas Ahearn

On January 25, 2022, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) announced the withdrawal of the COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) issued in November 2021 to protect unvaccinated employees of large employers with 100 or more workers from exposure to COVID-19, according to a statement from OSHA. The withdrawal is effective January 26, 2022.

Although OSHA is withdrawing the Vaccination and Testing Emergency Temporary Standard as an enforceable emergency temporary standard, the agency is not withdrawing the ETS as a proposed rule but rather prioritizing its resources to focus on finalizing a permanent COVID-19 Healthcare Standard. OSHA strongly encourages the vaccination of workers against the continuing dangers posed by COVID-19 in the workplace.

On January 13, 2022, in a decision that prompted the withdrawal, the Supreme Court of the United States issued a ruling in the case of National Federation of Independent Business v. Department of Labor that blocked the Vaccination and Testing Emergency Temporary Standard issued by the OSHA that required employers with 100 or more employees to mandate COVID-19 vaccination or weekly testing for COVID-19 in their workforces.

“Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly. Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category,” the Supreme Court of the United States explained in the majority opinion.

On September 9, 2021, President Joe Biden announced an emergency rule requiring all employers with at least 100 employees “to ensure their workforces are fully vaccinated or show a negative test at least once a week.” On November 5, 2021, OSHA published the rule in the Federal Register requiring employers with more than 100 employees to mandate employees to be vaccinated against COVID-19 or tested weekly and wear masks at work.

On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay the COVID-19 vaccine or testing mandate and OSHA suspended the implementation and enforcement of the rule pending future developments in the litigation. On December 17, 2021, the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of OSHA’s mandate and enforcement was to begin on February 9, 2022.

On January 7, 2022, the Supreme Court heard oral arguments “on an emergency basis” regarding OSHA’s vaccine or testing mandate that would affect employers with at least 100 employees – approximately two-thirds of the private sector – and “the justices were skeptical of the administration’s attempt to impose a vaccine-or-test mandate for workers at large employers,” according to an argument analysis on SCOTUSblog.com.

COVID-19 is a potentially deadly respiratory illness that spreads from person to person. As of January 26, 2022, there are approximately 359 million global cases and 5.6 million global deaths, while the United States leads the world with approximately 72 million cases and 872,000 deaths, according to the COVID-19 Dashboard by the Center for Systems Science and Engineering (CSSE) at Johns Hopkins University (JHU).

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