On January 25, 2022, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) announced it is rescinding the Emergency Temporary Standard (ETS) mandating employers with 100 or more employees to require employees to become vaccinated against COVID-19 or test weekly for the virus. OSHA’s rescission, effective January 26, 2022, is in response to the U.S. Supreme Court’s January 13, 2022, decision upholding a stay prohibiting OSHA from implementing or enforcing the ETS until a lower court renders a determination on the legal viability of the ETS. Although the Supreme Court did not directly state the ETS exceeds OSHA’s authority, the Court noted multiple times in its opinion that challengers to the ETS were likely to prevail.
In its official announcement, OSHA explained that while the ETS will be rescinded and, accordingly not enforced, it is not withdrawing the standard as a proposed rule. OSHA’s announcement means that standard eventually may become effective, but only after the typical notice-and-comment rulemaking process is completed.
The current status of federal vaccine mandates stands as follows:
- The OSHA ETS for employers with 100 or more employees has been rescinded.
- The OSHA ETS for health care employers has expired.
- Executive Orders covering federal employees and contractors have been stayed by federal courts nationwide.
- The Centers for Medicare and Medicaid Services (CMS) rule is in effect, though legal challenges to the CMS rule continue.
Accordingly, as of this alert, employers are not required by federal law or regulation to mandate employee vaccines currently, other than employers subject to the CMS vaccination rule.
Keep in mind states independently may elect to require employers to mandate vaccines. Some states that have adopted OSHA-approved occupational safety and health plans (State Plans) may have already updated their requirements to align with the (now rescinded) OSHA ETS. Employers should closely evaluate their workforces to determine if any vaccine requirements are still applicable before discontinuing preparations.
The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for over sixty years and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.