OSHA announced on January 26 that they plan to withdraw the ETS, but that the rule would still be proposed as a permanent requirement. This comes just weeks after the Supreme Court reinstituted a stay of the OSHA’s Emergency Temporary Standard (ETS) earlier this month, requiring large employers to require staff to be vaccinated or produce a weekly negative test.
In their January 13th decision, the Supreme Court maintained that while COVID-19 exists as a risk in most workplaces, they do not view it as a strictly occupational hazard. The majority opinion states that targeted regulations may be permissible – citing workplaces that are particularly crowded or cramped, or laboratories that work directly with the virus for research purposes. In a separate opinion on January 13, the high court did allow CMS (Center for Medicare & Medicaid Services) to require COVID-19 vaccinations for employees of healthcare facilities receiving federal funds from Medicare & Medicaid.
OSHA initially published the ETS on November 5. A flurry of legal action followed from both private and public employers, and by November 12 – the 5th Circuit Court of Appeals issued a stay of the ETS (making the ETS invalid). To further complicate matters, the 6th Circuit voted 2-1 to reinstate the mandate on December 17.
Some employers are choosing to create their own vaccine mandates, which should be handled carefully to avoid discrimination. If you have questions about implementing a vaccine policy, consult your legal counsel.