OSHA Withdraws Vax-or-Test ETS, Plans to Issue Permanent Healthcare Standard

By Fiona W. Ong - Shawe Rosenthal LLP

January 25, 2022

On January 25, 2022, the Occupational Safety and Health Administration announced that it was withdrawing its beleaguered Emergency Temporary Standard that required employers with 100+ employees to mandate employees to be vaccinated or subject to weekly COVID-19 testing. With this action, the vax-or-test mandate is no more – for now. However, healthcare employers should be aware that, in addition to the Center for Medicare and Medicaid Services’ vaccine mandate that was recently allowed to take effect by the Supreme Court, they will soon be subject to a permanent standard replacing the healthcare ETS that OSHA previously withdrew in December 2021.

Possible Permanent Vax-or-Test Standard? In its statement, OSHA clarifies that it is not withdrawing the vax-or-test ETS as a proposed rule – meaning that a version of the ETS could issue as a permanent standard at some point in the future. The notice and comment period for the proposed rule closed on January 19, 2022. Presumably OSHA will review any comments that it received, along with restrictions indicated by the Supreme Court’s opinion in staying the ETS.

Forthcoming Permanent Healthcare Standard? In addition, healthcare employers should note OSHA asserts that it is focused on finalizing a permanent healthcare standard. This follows its withdrawal of the healthcare ETS in December 2021, upon the expiration of the standard 6-month lifespan of an ETS.

In the meantime, on its healthcare ETS webpage, OSHA states that it will rely upon the General Duty Clause and its general standards, including the Personal Protective Equipment and Respiratory Protection standards, to protect healthcare workers. Specifically, OSHA asserts that “OSHA will accept compliance with the terms of the Healthcare ETS as satisfying employers’ related obligations under the general duty clause, respiratory protection, and PPE standards. Continued adherence to the terms of the healthcare ETS is the simplest way for employers in healthcare settings to protect their employees’ health and ensure compliance with their OSH Act obligations.” And it cautions healthcare employers that “the terms of the Healthcare ETS remain relevant in general duty cases in that they show that COVID-19 poses a hazard in the healthcare industry and that there are feasible means of abating the hazard.” Thus, healthcare employers can expect OSHA to push continued compliance with the ETS, despite its withdrawal.

Notably, the original healthcare ETS did not require vaccination. While the Interim Final Rule from the Centers for Medicare and Medicaid Services, which the Supreme Court allowed to take effect, mandates vaccination of employees of Medicare- and Medicaid-certified employers, this group of employers is not as extensive as the group that was covered by the original healthcare ETS. Thus, it is quite possible that a permanent standard will incorporate a vaccine mandate.

This is obviously a fast-moving and complicated situation. We will continue to let you know of any significant developments.

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