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OSHA’s COVID-19 Vaccination and Testing ETS Withdrawn; Final Determination of Proposed Rule Pending Image

OSHA’s COVID-19 Vaccination and Testing ETS Withdrawn; Final Determination of Proposed Rule Pending

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On January 25, 2022, the Occupational Safety and Health Administration (OSHA) announced the withdrawal of the COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS), effective January 26, 2022. This follows the U.S. Supreme Court’s decision granting an emergency stay of the ETS, finding OSHA likely lacked authority to impose emergency mandate on 84 million Americans. OSHA’s withdrawal, however, is limited to the ETS.

Employers must remember the ETS is distinguishable from a permanent occupational safety and health standard promulgated pursuant to the regular notice and rulemaking process. Under the regular process:

(1) OSHA publishes a proposed rule;

(2) Interested persons may comment, object, and request a public hearing on objections to the proposed rule;

(3) OSHA publishes the objections and notice of the public hearing on the objections; and

(4) OSHA promulgates, modifies, or revokes the proposed rule within sixty (60) days of the close of the comment period or, if a hearing was held, the hearing on the objections.

OSHA continues to pursue the promulgation of a permanent rule mirroring the ETS. Publication of the ETS on November 5, 2021, served as the first step in the rulemaking process. The comment period ended January 19, 2022. OSHA should publish any objections and notice for public hearing in the Federal Register on or before February 18, 2022.[1]

Minnesota OSHA suspended its enforcement of the adopted ETS [2] following the U.S. Supreme Court’s emergency stay of the ETS. The agency has yet to announce whether enforcement of the state rule will resume in light of OSHA’s withdrawal of the ETS and quest for a permanent rule.

This notice is provided to serve as an overview and does not constitute legal advice. For additional information regarding this topic or any employment matter, please contact the author of this article or a member of Gislason &Hunter, LLP’s Labor and Employment Law Practice Group at 507.387.1115.

[1] 29 USC § 655(b)(3).

[2] See 46 SR 789-91 (Minn. Jan. 3, 2022); Minn. Admin. R. 5205.0010 (adopting OSHA’s COVID-19 Vaccination and Testing ETS by reference).