The Occupational Safety and Health Administration withdrew its vaccine-or-test Emergency Temporary Standard, bringing an official end to the ETS and its related litigation. However, as part of the withdrawal, the agency left the ETS in place as a proposed rule, leaving the door open for further COVID-19 workplace safety standards.
ETS as a final rule? In its withdrawal notice, OSHA specifically indicated that “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.” This means OSHA is retaining the ETS as a proposed rule for a permanent standard under its general OSHA Act authority.
The decision leaves two possible outcomes. Under the Administrative Procedure Act, an agency’s final rule must be a “logical outgrowth” of the proposed rule. Thus, if OSHA simply retains the ETS as a proposed rule as indicated, a final rule would have to look substantially similar to the ETS to pass judicial scrutiny. However, if this is the case, the final rule would likely be rescinded by the courts anyway, given the Supreme Court’s recent decision on the ETS that cast significant doubt on OSHA’s authority to regulate COVID-19 through such a wide-ranging rule.
Alternatively, OSHA could issue a new or updated proposed COVID-19 workplace safety rule. In contrast to the all-encompassing ETS, such a rule could instead target specific industries or workplaces, something the Supreme Court indicated that OSHA likely does have the authority to do. In this scenario, a new comment period would be required, giving stakeholders another chance to weigh in.
Outlook: Regardless of where OSHA decides to go, employers do not have to worry about compliance with the ETS—or something similarly wide-ranging—for the foreseeable future. Employers should instead be on the lookout for a potential smaller-scale standard from OSHA in the coming months, while remaining vigilant of state and local activity in this area.