OSHA Seeks Permanent Vaccine-or-Testing Rule, Shelves Temporary Directive

By Lisa Nagele-Piazza, J.D., SHRM-SCP
January 25, 2022 - SHRM

The Occupational Safety and Health Administration (OSHA) is withdrawing its emergency temporary standard (ETS) that would have required by Feb. 9 that large businesses ensure employees are vaccinated against the coronavirus or undergo weekly COVID-19 testing. Nonetheless, the agency is moving forward with its proposal to make the temporary directive a permanent standard. 

On Jan. 13, the U.S. Supreme Court halted the ETS while the 6th U.S. Circuit Court of Appeals considered the merits of the challenge against the vaccination-or-testing directive. OSHA announced on Jan. 25 that it will no longer seek to enforce the ETS, which will end the lawsuit, but the temporary directive served a dual purpose. The ETS also acts as a proposal for a permanent standard, which is separate from the litigation. "OSHA is not withdrawing the ETS to the extent that it serves as a proposed rule," according to the agency. 

Eric Hobbs, an attorney with Ogletree Deakins in Milwaukee, noted that OSHA cannot now adopt a regular standard that looks just like the ETS, given the Supreme Court's decision. "So the agency is going to have to narrow the scope of the standard, probably focusing on what it deems to be high-hazard industries," he said.

OSHA said in a statement that it is prioritizing a proposal for a permanent COVID-19 safety standard for health care workers. 

"Notwithstanding the withdrawal of the [ETS], OSHA continues to strongly encourage the vaccination of workers against the continuing dangers posed by COVID-19 in the workplace," the agency said.

Significant Factors 

OSHA published the ETS in the Federal Register on Nov. 5, and an emergency temporary standard may remain in place for only six months from the date of publication. "After that time, it must be replaced by a permanent OSHA standard, which must undergo a formal rulemaking process involving a typical notice-and-comment period," according to law firm Fisher Phillips.

OSHA accepted comments on the proposal through Jan. 19 and highlighted the following areas that the agency will consider as it develops the final rule:

• Whether employers with fewer than 100 employees should be covered by a potential final standard; whether such employers are currently requiring workers to get vaccinated (either with or without offering alternatives, such as testing and masking); and what benefits and challenges they have experienced. --
• Whether the scope of the rule should change to address the significant risk posed by COVID-19 in the workplace. For example, should portions of the rule, such as masking requirements, apply to fully vaccinated workers?
• Whether the agency should consider additional scientific information about prior COVID-19 infection and immunity. "Given scientific uncertainty and limitations in testing for infection and immunity, OSHA is concerned that it would be infeasible for employers to operationalize a standard that would permit or require an exception from vaccination or testing and face covering based on prior infection with COVID-19," the agency said.
• Whether OSHA should impose a strict vaccination mandate with no alternative compliance options.
• What types of COVID-19 vaccination policies employers have implemented to protect workers; whether vaccination is mandatory or voluntary under the policy; what type of leave is offered; and what percentage of their workforce was vaccinated as a result.
• Whether employers have COVID-19 testing and removal policies and what those policies require.