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Volume XIII, Number 28


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OSHA Withdraws Vaccine-Or-Test Emergency Temporary Standard for COVID-19

The Occupational Safety and Health Administration (OSHA) has withdrawn its enforcement of the Emergency Temporary Standard (ETS) requiring most employers to mandate COVID-19 vaccines or tests for employees.

OSHA’s announcement follows the U.S. Supreme Court’s ruling to grant a temporary stay of the ETS. This move most likely renders litigation in the U.S. Court of Appeals for the Sixth Circuit deciding the merits of the ETS moot.

Although it withdrew its enforcement of the ETS, OSHA left its provisions in place to serve as a notice of proposed rulemaking for a permanent rule under the rulemaking process pursuant to the Administrative Procedures Act.

In December 2021, OSHA withdrew its healthcare emergency temporary standard issued in June 2021 for healthcare employers, but the agency since has pledged to promulgate a permanent COVID-19 standard for healthcare employers in about six to nine months. The agency could potentially use both withdrawn emergency temporary standards to issue a single rule for COVID-19 applicable to healthcare and other industries in which COVID-19 may be considered an occupational hazard.

In the absence of OSHA standards governing COVID-19, employers not covered by another federal, state, or local mandate may choose to implement policies and practices best-suited to the unique needs of their workplace, keeping in mind that OSHA State Plan states may elect to promulgate standards of their own. In addition, OSHA is continuing enforcement of longstanding standards governing respiratory protection, personal protective equipment and sanitization. It also is continuing enforcement of the General Duty Clause to address recognized hazards, including workplace response to COVID-19.

In all cases, employers should communicate clearly with their employees about any change in their policies and practices, continue to monitor all circumstances, and make additional changes as necessary. Employers that choose to maintain workplace vaccination policies must still follow other applicable laws (such as Title VII and the Americans with Disabilities Act) and be cognizant of state and local requirements, including the laws in states like Alabama, Arkansas, Florida, Iowa, Kansas, Montana, North Dakota, Tennessee, Texas, Utah, and West Virginia, that impact employer vaccination policies.

Jackson Lewis P.C. © 2023National Law Review, Volume XII, Number 25

About this Author

Courtney Malveaux, OSHA Lawyer, Employment, Richmond, Virginia, Jackson Lewis Law Firm

Courtney Malveaux is a Principal in the Richmond, Virginia, office of Jackson Lewis P.C.

Mr. Malveaux represents employers cited by the Occupational Safety and Health Administration and other regulatory agencies. He also advises and represents employers in employment law matters, including retaliation claims, employment discrimination, unemployment benefits and wage claims. Mr. Malveaux also represents business associations in state and federal legislative and regulatory matters.

Mr. Malveaux represents industry on the Virginia Safety and...

Melanie L. Paul Trial Attorney Jackson Lewis Atlanta, GA
Of Counsel

Melanie L. Paul is Of Counsel in the Atlanta, Georgia office of Jackson Lewis P.C.  Her practice focuses on occupational safety and health and wage and hour issues.  Ms. Paul’s clients benefit from her unique inside experience as a trial attorney for the U.S. Department of Labor (DOL) for more than a decade. 

During Ms. Paul’s time with the DOL, she regularly appeared at hearings and trials before federal administrative tribunals and federal district courts throughout the southeastern United States in matters of Occupational Safety and Health (OSHA) law, Mine...

Patricia Anderson Pryor, Class Action, Litigator
Principal and Office Litigation Manager

Patricia Anderson Pryor is a Shareholder in the Cincinnati, Ohio office of Jackson Lewis P.C. Ms. Pryor is an experienced litigator in both state and federal courts, representing and defending employers in nearly every form of employment litigation, including class actions.

She represents and advises employers in federal and state administrative proceedings, in all forms of dispute resolution, including mediation and arbitration, and in managing all aspects of the employment relationship. She has represented...

Sheri Giger, Jackson Lewis, human resource policy attorney, employment labor development lawyer,

Sheri L. Giger is a Principal in the Pittsburgh, Pennsylvania, office of Jackson Lewis P.C. Her practice focuses on preventive human resource policy development, training and counseling and advice.

Ms. Giger also works on policy/handbook development, particularly for multi-state issues and compliance. She also works with compliance issues under the American with Disabilities Act, as amended, and the Family and Medical Leave Act, as amended. Ms. Giger counsels and conducts extensive training on topics such as anti-harassment...

Of Counsel

Kristina Brooks is of counsel in the Albuquerque, New Mexico, office of Jackson Lewis P.C.  Her practice focuses on occupational safety and health issues in the workplace. 

After spending 15 years litigating cases as a senior trial attorney for the U.S. Department of Labor (DOL), Kristina provides invaluable insight to clients who are navigating the rapidly changing safety and health regulations applicable to the healthcare, energy and utilities, construction, hospitality, retail, staffing, and transportation industries. A...