On January 25, 2022, the federal Occupational Safety and Health Administration (“OSHA”) announced its withdrawal of the COVID-19 Emergency Temporary Standard (“ETS”) requiring vaccination or weekly testing.  This action came shortly after the United States Supreme Court stayed the immediate implementation and enforcement of the ETS.  You can read our prior article about the Supreme Court’s ruling here.  Although the Supreme Court did not rule on the merits of whether the ETS could ultimately stand, the Court indicated when it imposed its emergency stay that the applicants challenging the ETS would likely succeed.

The ETS required that private employers with 100 or more employees implement a mandatory vaccination or weekly testing/face covering policy.  This contradicted many state requirements, was a change in policy for many employers, and the Supreme Court noted that “the Secretary [of Labor] lacked authority to impose the mandate.”

While OSHA stated that it would no longer pursue the ability to enforce the ETS as of January 26, 2022, the agency also announced that it now plans to issue a permanent standard for healthcare providers at some point in the next few months.  OSHA’s initial Healthcare ETS, which required various protocols for employees in certain healthcare settings but did not contain a vaccine or testing requirement, was temporary and expired in December 2021.  The new permanent healthcare standard will likely feature some form of the ETS’ vaccine and testing requirement, combined with various protocols in the Healthcare ETS.  This permanent healthcare standard would be distinct from the Centers for Medicare & Medicaid Services (“CMS”) Interim Final Rule, which requires nearly all workers at Medicare- and Medicaid-certified facilities to be fully vaccinated against COVID-19.

Therefore, employers in the healthcare industry should continue to monitor future announcements from OSHA, especially employers who have not yet instituted their own mandatory vaccination policy.  Further, all employers should keep in mind that the withdrawal of the federal ETS does not affect any state ETS in place in states with OSHA-approved State Plans, like California.  Sheppard Mullin will continue to provide updates as they become available.

The legal landscape continues to evolve quickly and there is a lack of clear-cut authority or bright line rules on implementation. This article is not intended to be an unequivocal, one-size-fits-all guidance, but instead represents our interpretation of where applicable law currently and generally stands. This article does not address the potential impacts of the numerous other local, state and federal orders that have been issued in response to the COVID-19 pandemic, including, without limitation, potential liability should an employee become ill, requirements regarding family leave, sick pay and other issues.