Last week the Occupational Safety and Health Administration (OSHA) withdrew its Emergency Temporary Standard (ETS) that would have required businesses with 100 or more employees to put a policy in place that mandated either vaccinations or the option for employees to be vaccinated or test weekly and mask. Previously, on January 13, 2022, the United States Supreme Court halted OSHA’s ability to enforce the ETS while it was pending further review on the merits from the U.S. Court of Appeals for the Sixth Circuit. OSHA chose to withdraw the ETS, effective Wednesday, January 26, instead of waiting for a possibly unfavorable decision from the U.S. Court of Appeals for the Sixth Circuit.
OSHA is still exploring moving forward with a permanent rule and will continue to treat the withdrawn ETS as a proposed rule, subject to the usual rulemaking process, which can take several months. Employers are encouraged to submit comments on how these restrictions would impact their organizations. In the meantime, OSHA has vowed to enforce the general duty clause in the Occupational Safety and Health Act, which requires employers to provide a place of employment “free from recognized hazards that are causing or are likely to cause death or serious physical harm.”
Employers are still free to implement their own COVID-19 policies and incentives, and/or mandates, provided they comply with applicable state laws on the topic and provide for accommodations when required by law. A common myth is that HIPAA prevents employers from asking about the vaccination status of their employees. Employers may inquire as to whether an employee has been vaccinated if the question is limited to allow for a yes-or-no answer.
Relevant state and local government rules are not impacted by OSHA’s withdrawal of the ETS. Employers must continue to comply with any state and local rules that apply to their businesses. In addition, it is possible that some (likely narrower) version of the ETS could become a permanent rule in the future. While it is impossible to predict what a future permanent rule could look like, employers who have collected vaccination information from their employees should retain this information in case it becomes necessary for compliance.