The Occupational Safety and Health Administration (OSHA) has withdrawn its enforcement of the Emergency Temporary Standard (ETS) requiring most employers to mandate COVID-19 vaccines or tests for employees.

OSHA’s announcement follows the U.S. Supreme Court’s ruling to grant a temporary stay of the ETS. This move most likely renders litigation in the U.S. Court of Appeals for the Sixth Circuit deciding the merits of the ETS moot.

Although it withdrew its enforcement of the ETS, OSHA left its provisions in place to serve as a notice of proposed rulemaking for a permanent rule under the rulemaking process pursuant to the Administrative Procedures Act.

In December 2021, OSHA withdrew its healthcare emergency temporary standard issued in June 2021 for healthcare employers, but the agency since has pledged to promulgate a permanent COVID-19 standard for healthcare employers in about six to nine months. The agency could potentially use both withdrawn emergency temporary standards to issue a single rule for COVID-19 applicable to healthcare and other industries in which COVID-19 may be considered an occupational hazard.

In the absence of OSHA standards governing COVID-19, employers not covered by another federal, state, or local mandate may choose to implement policies and practices best-suited to the unique needs of their workplace, keeping in mind that OSHA State Plan states may elect to promulgate standards of their own. In addition, OSHA is continuing enforcement of longstanding standards governing respiratory protection, personal protective equipment and sanitization. It also is continuing enforcement of the General Duty Clause to address recognized hazards, including workplace response to COVID-19.

In all cases, employers should communicate clearly with their employees about any change in their policies and practices, continue to monitor all circumstances, and make additional changes as necessary. Employers that choose to maintain workplace vaccination policies must still follow other applicable laws (such as Title VII and the Americans with Disabilities Act) and be cognizant of state and local requirements, including the laws in states like Alabama, Arkansas, Florida, Iowa, Kansas, Montana, North Dakota, Tennessee, Texas, Utah, and West Virginia, that impact employer vaccination policies.

If you have questions or need assistance on the OSHA ETS, please reach out to the Jackson Lewis attorney with whom you regularly work, or any member of our Workplace Safety and Health Practice Group or our OSHA ETS Team.

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Photo of Patricia Anderson Pryor Patricia Anderson Pryor

Patricia Anderson Pryor is the office managing principal of the Cincinnati and Dayton, Ohio offices, as well as the Louisville, Kentucky, office of Jackson Lewis P.C. Patty remains purposefully poised on the precipice of the changing legal landscape, advising clients on everything from…

Patricia Anderson Pryor is the office managing principal of the Cincinnati and Dayton, Ohio offices, as well as the Louisville, Kentucky, office of Jackson Lewis P.C. Patty remains purposefully poised on the precipice of the changing legal landscape, advising clients on everything from vaccine mandates to the Dobbs response, to ESG and the attacks on DEI, to the impact of Loper Bright. The combination of Patty’s ability and tenacity to understand and apply workplace law to nuanced legal questions and specific situations results in clients perpetually asking this initial question, “What does Patty think?”

Patty is the National Head of the firm’s Emerging and Cross-Disciplinary Issues. She has over 25 years of experience representing and defending employers in nearly every form of employment litigation, including class actions. She represents and advises employers in federal and state administrative proceedings, in all forms of dispute resolution, including mediation and arbitration, and in managing all aspects of the employment relationship. She has represented employers before the EEOC, the DOL, the DOJ, OSHA, the OFCCP, and the NLRB, in addition to various state agencies.

Focusing on the best possible outcome for the client Patty takes a 360-degree view, working with employers to avoid litigation by developing effective policies and practices, including harassment policies, FMLA practices, attendance programs, affirmative action programs and wellness plans. She conducts proactive wage and hour audits, harassment investigations and compensation/pay equity reviews.

Patty is a core team member of the firm’s Disability, Leave & Health Management practice group and a leader of the Religious Accommodation Team. She provides practical advice to help companies respond to remote work challenges, paid and unpaid leave situations and the most challenging accommodation requests, all of which have been exacerbated by the pandemic, hybrid work and changes in the law.

Photo of Courtney M. Malveaux Courtney M. Malveaux

Courtney M. Malveaux is a principal in the Richmond, Virginia, office of Jackson Lewis. P.C. He is co-leader of the firm’s Workplace Safety and Health practice group. His practice focuses on representing employers cited by the Occupational Safety and Health Administration and other…

Courtney M. Malveaux is a principal in the Richmond, Virginia, office of Jackson Lewis. P.C. He is co-leader of the firm’s Workplace Safety and Health practice group. His practice focuses on representing employers cited by the Occupational Safety and Health Administration and other regulatory agencies, oftentimes following catastrophic incidents.

Photo of Melanie L. Paul Melanie L. Paul

Melanie L. Paul is a principal in the Atlanta, Georgia, office of Jackson Lewis P.C. She is co-leader of the firm’s Workplace Safety and Health practice group. Her practice focuses on occupational safety and health and wage and hour issues. Melanie’s clients benefit…

Melanie L. Paul is a principal in the Atlanta, Georgia, office of Jackson Lewis P.C. She is co-leader of the firm’s Workplace Safety and Health practice group. Her practice focuses on occupational safety and health and wage and hour issues. Melanie’s clients benefit from her unique inside experience as a trial attorney for the U.S. Department of Labor (DOL) for more than a decade.

Photo of Sheri L. Giger Sheri L. Giger

Sheri L. Giger is a principal in the Pittsburgh, Pennsylvania, office of Jackson Lewis P.C. She is co-leader of the firm’s Disability, Leave and Health Management (DLHM) practice group.

Photo of Kristina T. Brooks Kristina T. Brooks

Kristina Brooks is of counsel in the Albuquerque, New Mexico, office of Jackson Lewis P.C. Her practice focuses on occupational safety and health issues in the workplace, and where employee safety is concerned, is an avid believer in the saying “an ounce of…

Kristina Brooks is of counsel in the Albuquerque, New Mexico, office of Jackson Lewis P.C. Her practice focuses on occupational safety and health issues in the workplace, and where employee safety is concerned, is an avid believer in the saying “an ounce of prevention is worth a pound of cure.”