May 26, 2022

Volume XII, Number 146

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May 25, 2022

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OSHA’s Next Steps with the Vaccine or Test Rule

On Tuesday, January 25, the U.S. Occupational Safety and Health Administration (OSHA) announced the withdrawal of the “Emergency Temporary Standard” (ETS) that would have required large private employers of 100 or more employees to implement a vaccine or test policy. This announcement came after the U.S. Supreme Court stayed enforcement of the ETS on January 13, 2022 pending a decision from the Sixth Circuit on the underlying proceedings challenging the ETS. The withdrawal of the ETS is effective as of January 26, 2022.

The announcement from OSHA made it clear that the withdrawal is not complete, stating:

“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.” OSHA’s complete withdrawal can be found here.

OSHA intends to keep the ETS as a proposed rule under OSHA’s rulemaking authority. This means that OSHA may choose to modify the previously published ETS and may rely on the Supreme Court’s opinion in doing so. OSHA may choose to implement ideas from the Supreme Court justices such as an industry or workplace specific analysis.  Additionally, OSHA is also likely to review the comments submitted during the notice and comment period for direction with respect to a potential final ETS.

While Tuesday’s announcement does not necessitate action by employers, it does leave the door open for future directives. 

© 2022 Varnum LLPNational Law Review, Volume XII, Number 27
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About this Author

Maureen Rouse-Ayoub Labor Employment Attorney
Counsel

Maureen represents clients in all areas of labor and employment. She advises clients on labor management relations including union election proceedings, collective bargaining and contract enforcement in arbitration and before the National Labor Relations Board. Maureen defends employment-related claims including discrimination, sexual harassment, wrongful discharge, Whistleblowers' and Fair Labor Standards Act violations in federal and state courts, administrative proceedings and arbitration hearings. She counsels clients on drafting, implementation and enforcement of workplace policies....

248-567-7807
Stephanie R. Setterington, labor and employment attorney, Varnum
Partner

Stephanie advises employers on a wide variety of labor and employment matters, with an emphasis on employment litigation defense, and the identification and development of best practices in the area of human resources. She has worked extensively as labor and employment counsel for publicly-traded and privately-held companies that vary from single-site businesses to multi-state or global entities. She works with each client to ensure compliance with labor and employment-related legal requirements, develop effective human resource operations, and achieve the successful...

616/336-6466
William J. Whalen Labor and Employment Attorney Varnum
Associate

Bill is an associate at Varnum. He is a skilled researcher with experience in the labor and employment area as well as litigation matters. While in law school, Bill worked as an intern at the Equal Employment Opportunity Commission where he responded to requests to the legal unit, analyzed investigatory files and provided research on employment discrimination, harassment and retaliation matters. He served as a law student intern for U.S. Attorney's Office for the Western District of Michigan.

616-336-6396
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