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Navigating the OSHA ETS Withdrawal: Assessing the Path Forward

Analyzing the Implications and Next Steps Following the Federal OSHA’s Vaccine-or-Test ETS Withdrawal

Key Takeaways:

  • On January 26, 2022, the federal Occupational Safety and Health Administration (OSHA) withdrew its COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS).
  • The U.S. Supreme Court had previously stayed the implementation of the ETS pending further review, leading to OSHA’s decision to withdraw it as an enforceable standard.
  • Despite the withdrawal, OSHA intends to use the ETS as a proposal for a permanent standard under the Occupational Safety and Health Act (OSH Act).
  • The Supreme Court’s decision raises questions about the viability of a permanent standard mirroring the ETS in its present form.
  • State OSHA Plans may still implement their own vaccine-or-test ETS, with some states expressing support for such provisions.
  • OSHA is prioritizing the finalization of a permanent COVID-19 Healthcare Standard.


The recent withdrawal of the COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) by the federal Occupational Safety and Health Administration (OSHA) has left many employers and individuals wondering about the future course of action. This article aims to analyze the implications of OSHA’s withdrawal, explore potential next steps, and shed light on the significance of state OSHA plans and the ongoing pursuit of a permanent COVID-19 Healthcare Standard.

Background: The ETS and Legal Challenges

OSHA issued the ETS on November 5, 2021, mandating that employers with at least 100 employees ensure either full vaccination or regular COVID-19 testing and face coverings for their workers. However, the ETS faced legal challenges across the country, prompting the U.S. Court of Appeals for the Fifth Circuit to issue a stay of enforcement on November 12, 2021. The legal challenges were later consolidated before the U.S. Court of Appeals for the Sixth Circuit, which dissolved the stay on December 17, 2021.

The Supreme Court’s involvement came on January 13, 2022, when it granted emergency relief, once again staying the implementation of the ETS. In a 6-3 decision, the Court expressed concerns about OSHA’s authority to regulate broad public health measures and the classification of COVID-19 as an occupational hazard. This stay set the stage for OSHA’s subsequent withdrawal of the ETS.

Withdrawal of the ETS: What Does It Mean?

On January 25, 2022, OSHA officially announced the withdrawal of the ETS as an enforceable emergency temporary standard. The decision was made after evaluating the Supreme Court’s ruling. However, OSHA emphasized that the ETS will continue to serve as a proposed rule for a permanent standard under the Occupational Safety and Health Act (OSH Act). This means that OSHA intends to use the withdrawn ETS as the basis for developing a permanent standard.

The Viability of a Permanent Standard

The Supreme Court’s scrutiny of the ETS raises questions about the prospects of a permanent standard that closely mirrors the withdrawn ETS. The Court’s majority opinion emphasized that OSHA’s role is to set workplace safety standards, not broad public health measures. It suggested that a permanent standard would need to demonstrate a logical connection to workplace hazards rather than encompassing hazards associated with daily life.

In light of the Court’s stance, it is uncertain what form a permanent standard would take. OSHA may consider revising the proposal, reopening the comment period, or exploring alternative approaches. Striking a balance between workplace safety and broader public health concerns will be essential to address the Court’s concerns and ensure the legality and effectiveness of any future permanent standard.

State OSHA Plans and Vaccine-or-Test ETS

Twenty-eight states and U.S. territories operate their own OSHA-approved State Plans, which must be “at least as effective” as federal OSHA’s regulations. Some states, such as Minnesota and Illinois, initially adopted the federal ETS as part of their State Plans. However, following the Supreme Court’s decision, these states have announced that they are staying enforcement of their State ETS.

Other states may still choose to implement their own vaccine-or-test ETS. During a recent California Standards Board Meeting, several members expressed support for including a vaccine-or-test provision in a temporary or permanent standard. The actions taken by state OSHA plans will vary, potentially leading to a patchwork of regulations across the country.

Prioritizing the COVID-19 Healthcare Standard

While the ETS faced challenges and ultimate withdrawal, OSHA remains committed to addressing COVID-19 in the workplace. OSHA announced its prioritization of finalizing a permanent COVID-19 Healthcare Standard, which had previously served as a proposal. The Healthcare ETS, issued in June 2021 and expired in December 2021, remains an area of focus for OSHA’s ongoing efforts.

Conclusion: Navigating the Path Forward

The withdrawal of the OSHA ETS marks a significant development in the ongoing debate surrounding COVID-19 workplace regulations. As employers and individuals adapt to the changing landscape, it is crucial to stay informed and monitor any updates or new proposals from OSHA. The viability of a permanent standard that addresses workplace safety while addressing the Supreme Court’s concerns remains a key consideration. Furthermore, the actions of state OSHA plans and the prioritization of a permanent COVID-19 Healthcare Standard will continue to shape the regulatory landscape. Stay tuned for further developments and guidance as organizations navigate the path forward in ensuring workplace safety during the ongoing pandemic.

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