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OSHA Tables Vaccine Mandate for Now

Agency withdraws emergency rule for employers, but still seeking permanent standard
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WASHINGTON — The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has withdrawn the Vaccine Mandate Emergency Temporary Standard (ETS) issued on Nov. 5 to protect unvaccinated employees of large employers with 100 or more employees from workplace exposure to COVID-19, the agency said. The withdrawal is effective Jan. 26.

Although OSHA is withdrawing the vaccination and testing ETS as an enforceable emergency temporary standard, the agency is not withdrawing the ETS as a proposed rule, it said. The agency is prioritizing its resources to focus on finalizing a permanent COVID-19 Healthcare Standard. “OSHA strongly encourages vaccination of workers against the continuing dangers posed by COVID-19 in the workplace,” the agency added.

Earlier in January, the U.S. Supreme Court blocked the Biden administration’s vaccine mandate that would have affected approximately 84 million American workers.

President Biden in September announced that large private employers including convenience-store retailers, restaurant companies and other businesses had until Jan. 4 to ensure that their workers are fully vaccinated against COVID-19. Under OSHA’s ETS, employees who are not fully vaccinated would have to wear face masks on the job and be subject to weekly COVID tests. There would be exceptions, including for those who work outdoors or only at home.

A federal appeals court panel on Dec. 17 allowed the vaccine mandate to move forward, effective Jan. 10, reversing a stay. The decision by a panel of the 6th U.S. Circuit Court of Appeals in Cincinnati overruled a decision by a judge in the U.S. Court of Appeals for the 5th Circuit in New Orleans that had paused the mandate nationwide.

Also in January, a coalition of 27 attorneys generals in a letter as part of the federal government’s formal regulatory comment process asked OSHA to withdraw the mandate. The letter was led by Kentucky Attorney General Daniel Cameron and co-signed by AGs from South Carolina, Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Dakota, Tennessee, Texas, Virginia, Utah, West Virginia and Wyoming.

“The ETS fails to adequately consider the widespread economic damage the vaccine mandate may cause. This impact will be especially felt by vulnerable small businesses if a permanent standard applies to them,” the letter said.

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