May 26, 2022

Volume XII, Number 146

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OSHA Withdraws Emergency Temporary Standard Mandating Vaccination or Testing/Masking Policies for Employers with 100 or More Employees

On January 25, 2022, OSHA filed a notice withdrawing its Emergency Temporary Standard (“ETS”).  The ETS had mandated that employers with 100 or more employees require all employees to be fully vaccinated against COVID-19 or to wear face coverings and undergo weekly testing.

As we previously reported here, on January 13, 2022, the U.S. Supreme Court, in a per curiam opinion, stayed OSHA’s ETS, finding the stay was appropriate because petitioners were likely to succeed on the merits of their claim that the Secretary of Labor lacked authority to impose the mandate.

OSHA cited the recent per curiam opinion as the reason for their withdrawal. The withdrawal is effective immediately.

While the ETS has been withdrawn as an enforceable emergency temporary standard, the notice states that OSHA is not withdrawing the ETS to the extent it serves as a proposed rule under the OSH Act and that the withdrawal does not affect the status of the notice-and-comment rulemaking that has already commenced.

The notice also provides that state-run OSHA plans are not required to take any action at the present in response to the withdrawal, but may be required to do so in the future if OSHA adopts additional requirements. To that end, the notice reiterates that when OSHA adopts additional requirements that make OSHA’s programs more effective, state-run OSHA plans must adopt changes in order to provide at least the same level of efficacy.

We will continue to monitor and report on further developments regarding the ETS and its consideration as a proposed rule.

© 2022 Proskauer Rose LLP. National Law Review, Volume XII, Number 25
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About this Author

Guy Brenner, Labor Attorney, Proskauer Rose, arbitration proceedings Lawyer
Partner

Guy Brenner is a partner in the Labor & Employment Law Department and co-head of the Non-Compete & Trade Secrets Group. He has extensive experience representing employers in both single-plaintiff and class action matters, as well as in arbitration proceedings. He also regularly assists federal government contractors with the many special employment-related compliance challenges they face.

Guy represents employers in all aspects of employment and labor litigation and counseling, with an emphasis on non-compete and trade secrets issues,...

202-416-6830
Laura M. Fant, Labor & Employment Attorney, Proskauer Law Firm
Associate

Laura M. Fant is an Associate in the Labor & Employment Department, resident in the New York office. She is a member of the Accessibility and Accommodations Practice Group, and frequently counsels on matters involving the Americans with Disabilities Act (ADA) and state public accommodation law, as well as disability accommodation in the workplace. She has experience conducting accessibility audits and providing ADA and accessibility training for clients in a variety of sectors, including retail, sports, and not-for-profit. Her practice also focuses on wage and hour...

212-969-3631
Law Clerk

Raymond Arroyo is a law clerk in the Labor Department and a member of the Employment Litigation & Arbitration Group.

212.969.3041
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