Advocacy News – February 1, 2022
In response to the U.S. Supreme Court ruling on January 13, the Occupational Safety and Health Administration (OSHA) officially withdrew its Emergency Temporary Standard (ETS), which would have required employers with 100 or more employees to ensure their employees are fully vaccinated by January 4, 2022, or subject them to weekly testing. However, according to a Federal Register notice pushed last week, it appears OSHA will continue with the permanent rulemaking process.
While the agency is now stepping back from its ETS, indicated by both the withdrawal and court filings to dismiss the Sixth Circuit appeal, OSHA made it clear that its moves are not intended to affect the non-emergency version of the mandate (i.e., permanent rulemaking), saying: “Although OSHA is withdrawing the Vaccination and Testing ETS as an enforceable emergency temporary standard, OSHA is not withdrawing the ETS to the extent that it serves as a proposed rule…or otherwise affect the status of the notice-and-comment rulemaking commenced by the Vaccination and Testing ETS.”
According to a description of OSHA standards on the agency’s website, emergency temporary standards are in effect until superseded by a permanent standard. They serve as a proposed rule, which “is then subject to the usual procedure for adopting a permanent standard except that a final ruling should be made within six months.” This means a final permanent rule would be due around May.
It remains unclear how OSHA might choose to narrow the scope of the standard to address the Supreme Court’s ruling and/or the 121,000 public comments they’ve received. The Michigan Chamber will continue to monitor this evolving situation and continue to make its voice heard about the unintended consequences of vaccine mandates.
For employers still unclear about the status of the various federal vaccine mandates, including the OSHA ETS, federal contractor mandate and Centers for Medicare & Medicaid Services (CMS) rule impacting health care workers, the U.S. Chamber has put together this helpful one pager.
Please contact Wendy Block with questions at wblock@michamber.com.