June 27, 2022

Volume XII, Number 178

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June 27, 2022

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OSHA Withdraws the Vaccination and Testing ETS

On January 25, 2022, OSHA withdrew the COVID-19 vaccination and testing Emergency Temporary Standard (“ETS”), ending the litigation regarding the OSHA vaccine mandate.

The agency announced that it will treat the withdrawn ETS as a proposal for a permanent standard.  Unlike the ETS, which took immediate effect upon publication in the Federal Register, a permanent standard requires notice, comment, and an opportunity for a hearing.

The standard of scrutiny for permanent rules is lower than the “grave danger” standard required for emergency temporary standards.  Nevertheless, a permanent rule that mirrors the ETS still is likely to run afoul of the Supreme Court’s decision on the ETS.  Specifically, the Supreme Court ruled that OSHA only has the authority to issue workplace safety standards and not broad health measures.  And, the language of the ETS was considered a broad health measure.

The agency also announced that it is prioritizing its resources to focus on finalizing a permanent COVID-19 Healthcare Standard.  The ETS for healthcare has expired.

In the absence of the ETS, OSHA may enforce CDC guidance through its General Duty Clause.  Also, many other OSHA standards can apply to COVID-19 related workplace issues (such as requirements for PPE , respiratory protection , recordkeeping, and in some circumstances, bloodborne pathogens).  Some state OSHA plans, like CA and VA also have their own temporary or permanent COVID-19 standards that remain in place.

Copyright © 2022, Hunton Andrews Kurth LLP. All Rights Reserved.National Law Review, Volume XII, Number 41
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About this Author

Susan WIltsie Employment Lawyer Hunton Andrews Kurth
Partner

Susan’s practice focuses on labor, employment and OSHA compliance, litigation and defense.

Susan’s practice includes comprehensive OSHA/MSHA representation of employers across all industry sectors. Her OSHA/MSHA practice includes compliance assistance, training, citation defense, participation in rulemaking, appellate administrative litigation, whistleblower cases, creation/oversight of PSM/RMP and general OSHA audit programs, and fatality/serious injury accident investigation.

Susan has 30 years of experience...

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Anh Shigekawa Employment Lawyer Hunton AK
Associate

Anh represents employers in employment litigation matters in California. She has achieved favorable outcomes for clients using creative litigation strategies. 

An associate in the Los Angeles office, Anh defends clients in federal and state courts and before administrative agencies in labor and employment litigation cases involving claims of discrimination, harassment, retaliation, and wrongful termination. Anh focuses on efficiently resolving employment disputes, and her litigation strategy reflects her outcome-driven approach. Anh also advises...

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