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After SCOTUS Decision, OSHA to Seek Permanent Vaccination or Testing Mandate

Partner Kathleen J. Collins recently authored a Litchfield Alert, “After SCOTUS Decision, OSHA to Seek Permanent Vaccination or Testing Mandate,” summarizing the most recent COVID-19-related vaccination or testing mandate policies related to Occupational Safety and Health Administration.

On November 5, 2021, OSHA issued Emergency Temporary Standard (ETS) requiring businesses with 100 or more employees to implement a COVID-19-related vaccination or testing mandate policy. On Thursday, January 13, 2022, the United States Supreme Court halted the ETS while lower courts consider the merits of the ETS.

After evaluating the U.S. Supreme Court’s decision today, January 25, 2022, OSHA announced that it will no longer seek to enforce the ETS and is withdrawing it as an enforceable emergency temporary standard. However, OSHA is not withdrawing the ETS “to the extent that is serves as a proposed rule” under the Occupational and Health Act of 1970. Rather, OSHA will use the ETS as a guideline and proposal to draft a permanent vaccine or testing mandate standard.

Under the November 5, 2021, ETS, OSHA accepted comments on the ETS. It is anticipated that these comments will be analyzed in the drafting of a permanent standard. OSHA has indicated it the following will be considered in drafting the permanent standard:

  • Whether the scope of the rule should change to address the significant risk posed by COVID-19 in the workplace; e.g. Should portions of the rule, such as masking requirements, apply to fully vaccinated workers?
  • OSHA will assess whether it should consider additional scientific information about prior COVID-19 infection and immunity. “Given scientific uncertainty and limitations in testing for infection and immunity, OSHA is concerned that it would be infeasible for employers to operationalize a standard that would permit or require an exception from vaccination or testing and face covering based on prior infection with COVID-19…”.
  • Whether OSHA should impose a strict vaccination mandate with no alternative compliance options.
  • Analysis of employers policies presently in place to protect workers such as whether vaccination is mandatory or voluntary under the policy; what type of leave is offered; and, what percentage of their workforce was vaccinated as a result.
  • Whether employers with fewer than 100 employees should be covered by a potential final standard; whether such employers are currently requiring workers to get vaccinated (either with or without offering alternatives, such as testing and masking); and what benefits and challenges they have experienced.

While OSHA did not provide a timeline for the issuance of a permanent standard, it did note that he priority at this time is healthcare workers.

To read Kathleen’s Litchfield Alert, “After SCOTUS Decision, OSHA to Seek Permanent Vaccination or Testing Mandate,” click here. A full copy of the January 13, 2022, SCOTUS opinion can be found here.

Kathleen J. Collins draws on her more than 25 years’ experience in complex commercial litigation involving employment, commercial and residential construction, mass toxic tort and environmental matters. A substantial part of her practice includes the defense of employers, malls, restaurants, retail establishments and manufacturing entities with a world-wide presence. She has engaged in a multi-state civil litigation practice with an emphasis on defending all types of claims from initial filing to trial and appeal. Kathleen is national counsel for a top manufacturing company with a presence in the US and internationally and she has experience with international treaties in relation to her defense of multinational corporations. Her practice also includes consumer fraud, premises liability, and commercial and personal automobile claims.


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