May 26, 2022

Volume XII, Number 146

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OSHA Hints at Permanent COVID-19 Standard, Withdraws Vax-Or-Test ETS

On January 25, 2022, the US Occupational Safety and Health Administration (OSHA) announced that it would withdraw its controversial “vax-or-test” Emergency Temporary Standard (ETS), which required large employers to impose vaccination or testing requirements upon their employees. The withdrawal will be effective as soon as the announcement is published in the Federal Register, which is scheduled to occur on January 26, 2022.

In the same announcement, OSHA clarified that the text of the ETS will remain in place to solicit additional comments from the general public so that, according to OSHA, the agency can “prioritiz[e] its resources to focus on finalizing a permanent COVID-19 Healthcare Standard.” If OSHA follows this path, the final rule will be published no later than May 5, 2022.

OSHA also confirmed that the 22 states that have OSHA-approved state OSHA plans are free to issue or withdraw their own COVID-19 health and safety regulations without regard to federal OSHA’s activities.

This update follows the US Supreme Court’s January 13, 2022, ruling that blocked OSHA from enforcing its ETS while litigation regarding the merits of the ETS proceeded in the US Court of Appeals for the Sixth Circuit. The ETS, which was originally issued on November 5, 2021, was scheduled to expire on May 5, 2022.

© 2022 McDermott Will & EmeryNational Law Review, Volume XII, Number 25
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About this Author

Abigail M. Kagan Employment Attorney McDermott Will & Emery New York, NY
Associate

Abigail M. Kagan focuses her practice on employment law, with particular experience in conducting transactional due diligence, defending single-plaintiff, class and collective actions, second-chairing labor negotiations, and drafting personnel policies and other employment documents. She has advised clients on EEO concerns, the gig economy, data privacy, leaves of absence, reductions in force, wage and hour audits, unemployment insurance, short-term disability, restrictive covenants, and NLRA application to non-union members.

Abigail has conducted internal investigations and...

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Michelle S. Strowhiro
Partner

Michelle S. Strowhiro is an employment advisor and litigator. She provides trusted counsel to US and international companies on all aspects of employment law compliance. Michelle partners with clients to establish and maintain their strong and lawful employment policies and practices; manage their employee relationships from hire to termination; conduct workplace investigations; administer leaves and other workplace accommodations; and resolve disputes. She provides manager and employee trainings on management and sexual harassment. She regularly prepares and negotiates...

310-788-1571
Lindsay Ditlow Employment Attorney McDermott Will & Emery New York, NY
Partner

Lindsay Ditlow is experienced in all aspects of employment law, including litigation, counselling, and corporate transactions.

As a trial lawyer, Lindsay has successfully represented numerous clients in employment litigations, including cases involving claims under Title VII, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Fair Credit Reporting Act, the Family Medical Leave Act and state leave laws, the Inevitable Disclosure Doctrine, state discrimination and retaliation statutes, the Fair Labor Standards Act, and state wage and hour laws.

...

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