Policies & Issues

OSHA Withdraws ‘Vaccine or Testing’ Mandate

Policies & IssuesFeb 01, 2022

OSHA Withdraws ‘Vaccine or Testing’ Mandate

The Supreme Court recently blocked the emergency temporary standard, but OSHA may still have a path forward.

The U.S. Department of Labor’s Occupational Safety and Health Administration withdrew its “vaccine or testing” emergency temporary standard after the Supreme Court blocked it. However, OSHA said it is not withdrawing the ETS as a proposed rule.
New York—The U.S. Department of Labor’s Occupational Safety and Health Administration has withdrawn its “vaccine or testing” mandate following the Supreme Court’s decision to block it.

The vaccine or testing mandate dictated that companies with 100 or more employees were required to have workers vaccinated against COVID-19 or be tested weekly and wear masks.

The withdrawal was effective as of Jan. 26.

OSHA made the initial announcement about the Emergency Temporary Standard (ETS) in November, and immediately was met with pushback, including from the National Retail Federation, which filed a lawsuit to challenge the rule.

The mandate has been through the legal gauntlet in recent months, first getting blocked by the U.S. Court of Appeals for the Fifth Circuit. The Sixth Circuit court later let it go forward, but it ended up in front of the Supreme Court.

In a 6-3 decision on Jan. 13, the Supreme Court ruled that OSHA had exceeded its statutory authority in implementing this mandate and blocked it from going forward.

“Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly,” wrote the court’s conservative justices, who voted together to block the mandate.

“Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category.”

 Related stories will be right here … 

In their dissent, the court’s three liberal justices argued that OSHA does have the right and the expertise to impose the mandate, arguing that the court lacks public health knowledge and is “insulated from responsibility for any damage it causes."

“In the face of a still-raging pandemic, this court tells the agency charged with protecting worker safety that it may not do so in all the workplaces needed,” wrote the judges in the dissent.

“As disease and death continue to mount, this court tells the agency that it cannot respond in the most effective way possible. Without legal basis, the court usurps a decision that rightfully belongs to others. It undercuts the capacity of the responsible federal officials, acting well within the scope of their authority, to protect American workers from grave danger.”

In a statement following the Supreme Court’s ruling, President Joe Biden called on states and employers to voluntarily implement vaccination requirements to protect workers.

“The court has ruled that my administration cannot use the authority granted to it by Congress to require this measure, but that does not stop me from using my voice as president to advocate for employers to do the right thing to protect Americans’ health and economy,” said Biden.

Though the Court has made its decision, there may still be a path forward for OSHA.

“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,” OSHA said in a statement on its website.

“The agency is prioritizing its resources to focus on finalizing a permanent COVID-19 Healthcare Standard.”

The agency said it continues to encourage workers to get vaccinated to avoid the dangers posed by COVID-19 in the workplace.

In a separate case, the Supreme Court ruled in a 5-4 decision on Jan. 13 that the COVID-19 vaccine requirement for healthcare workers, implemented by the Centers for Medicare & Medicaid Services, could go into effect as the appeals process continues.

For more information about COVID-19 and vaccinations, visit the Centers for Disease Control and Prevention’s website.

Lenore Fedowis the associate editor, news at National Jeweler, covering the retail beat and the business side of jewelry.

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