On Tuesday, the federal Occupational Safety and Health Administration published notice of its withdrawal of its COVID-19 emergency temporary standard (ETS) applicable to companies with 100 or more employees. The U.S. Supreme Court decision that led to the withdrawal only dealt with the validity of an injunction sought to temporarily stop the rules from taking effect. The court remanded the matter to the Sixth Circuit for a full decision on the merits. However, the Supreme Court’s decision on the stay basically made these further proceedings moot because the court rejected the statutory basis for the vaccinate-or-test mandate.
Faced with this reality, OSHA decided to withdraw the rule, ending further legal proceedings. In its withdrawal, the agency reminded employers that it is considering a permanent COVID-19 safety standard and will consider comments on the ETS when proposing any final rule. Any such standard likely would need to be directed at particular industries or limit its requirements to steps such as mask wearing at work.
OSHA also explained that the “mini respirator” portion of the ETS remains in effect in other OSHA safety standards. The revised recordkeeping part of the ETS, including changes to the way employers record and report employee COVID-19 infections, was not exempted from the withdrawal. This means that for now at least, OSHA’s prior presumption that the infections were not contracted at work remains in effect.