OSHA withdraws ETS, but federal contractor vax mandate litigation continues

On January 26, 2022, the Occupational Safety and Health Administration (OSHA) withdrew its COVID-19 emergency temporary standard (ETS), which had been issued on November 5, 2021. The withdrawal became effective the next day, when it was published in the Federal Register (https://bit.ly/3sG9eVp).

OSHA cited the U.S. Supreme Court’s stay of the ETS as the reason for the withdrawal, stating in its official announcement that “after evaluating the Court’s decision, [the agency] is withdrawing the Vaccination and Testing ETS as an enforceable emergency temporary standard” (https://bit.ly/34FOt4l). Notably, the agency went on to say it would still be using the standard as a proposed rule and “is prioritizing its resources to focus on finalizing a permanent COVID-19 Healthcare Standard.”

The ETS’s withdrawal is likely to end consolidated litigation against the mandate before the Cincinnati-based U.S. 6th Circuit Court of Appeals. In fact, OSHA recently asked the court to dismiss the litigation as moot because of its pending withdrawal of the standard.

OSHA explained to the 6th Circuit that “the Vaccination and Testing ETS’s requirements, which are currently stayed, will no longer be in effect, and petitioners will no longer be subject—or face any risk of being subject—to the challenged requirements from which they sought relief.” The court will probably grant the motion, putting an end to the matter.

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