OSHA Withdraws Covid-19 Vaccination Mandate

January 25, 2022

Today the Occupational Safety and Health Administration (OSHA) announced it is withdrawing its Covid-19 vaccination mandate for large private sector employers. Earlier this month the U. S. Supreme Court temporarily blocked the vaccination mandate pending further review by the Court. Some of the justices have serious doubts about OSHA’s authority to issue the mandate and apparently the Biden administration read the writing on the wall.

As you may recall, the vaccination mandate was issued as an Emergency Temporary Standard (ETS). Although it is withdrawing the ETS, OSHA states that it “is not withdrawing the ETS as a proposed rule.” In other words, OSHA intends to go through the administrative rule-making process to issue a vaccination mandate as a permanent regulation instead of a temporary requirement. Of course, it is very likely that such a regulation will be challenged in the courts.

It can take two or three years for a federal agency to promulgate a new regulation. In this case it might not take quite as long, if OSHA does not make major revisions to the ETS before rolling it out as a proposed regulation.

Although it blocked the vaccination mandate for large employers, the Supreme Court ruled that the administration can proceed with its vaccination mandate for health care workers at facilities that receive federal funding.

Last week a federal judge blocked the Biden administration’s vaccination mandate for federal workers. Last month a federal judge issued a nationwide injunction halting enforcement of the administration’s mandate for federal contractors.

Obviously, litigation over these federal vaccination mandates is far from over. But for employers with 100 or more employees (other than some in the healthcare sector) it may be a year or more before the issue arises again.