On Vaccine Mandate, OSHA Down But Not Out

On January 26, the Occupational Safety and Health Administration formally withdrew its nationwide COVID-19 vaccine mandate after the U.S. Supreme Court ruled 6-3 on January 13 that Congress had not given the agency authority to regulate conduct outside of the workplace.

The initial mandate, called an emergency temporary standard (ETS) had been announced November 5 but was suspended pending the court ruling after multiple plaintiffs sued. The mandate applied only to employers of 100 or more workers and required either a vaccine or regular testing plus masking. Many employers had implemented their own policies prior to the mandate. 

Despite the Supreme Court’s ruling, OSHA said it was moving ahead with keeping the ETS as a “proposed rule.” In a memo submitted to the Federal Register, the agency said, “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 under section 6(c)(3) of the Act, and this action does not affect the ETS’s status as a proposal under section 6(b) of the Act or otherwise affect the status of the notice-and-comment rulemaking commenced by the Vaccination and Testing ETS … Notwithstanding the withdrawal of the vaccination and testing ETS, OSHA continues to strongly encourage the vaccination of workers against the continuing dangers posed by COVID-19 in the workplace.”