On January 25, 2022, OSHA filed a notice withdrawing its Emergency Temporary Standard (“ETS”).  The ETS had mandated that employers with 100 or more employees require all employees to be fully vaccinated against COVID-19 or to wear face coverings and undergo weekly testing.

As we previously reported here, on January 13, 2022, the U.S. Supreme Court, in a per curiam opinion, stayed OSHA’s ETS, finding the stay was appropriate because petitioners were likely to succeed on the merits of their claim that the Secretary of Labor lacked authority to impose the mandate.

OSHA cited the recent per curiam opinion as the reason for their withdrawal. The withdrawal is effective immediately.

While the ETS has been withdrawn as an enforceable emergency temporary standard, the notice states that OSHA is not withdrawing the ETS to the extent it serves as a proposed rule under the OSH Act and that the withdrawal does not affect the status of the notice-and-comment rulemaking that has already commenced.

The notice also provides that state-run OSHA plans are not required to take any action at the present in response to the withdrawal, but may be required to do so in the future if OSHA adopts additional requirements. To that end, the notice reiterates that when OSHA adopts additional requirements that make OSHA’s programs more effective, state-run OSHA plans must adopt changes in order to provide at least the same level of efficacy.

We will continue to monitor and report on further developments regarding the ETS and its consideration as a proposed rule.

*     *     *

Subscribe to Proskauer’s Law and the Workplace blog to stay current on the latest COVID-related developments impacting your business.  Proskauer’s cross-disciplinary, cross-jurisdictional Coronavirus Response Team is focused on supporting and addressing client concerns.  Visit our Coronavirus Resource Center for guidance on risk management measures, practical steps businesses can take and resources to help manage ongoing operations.

Photo of Guy Brenner Guy Brenner

Guy Brenner is a partner in the Labor & Employment Law Department and leads the Firm’s Washington, D.C. Labor & Employment practice. He is head of the Government Contractor Compliance Group and is co-head of the Non-Compete & Trade Secrets Group. He has…

Guy Brenner is a partner in the Labor & Employment Law Department and leads the Firm’s Washington, D.C. Labor & Employment practice. He is head of the Government Contractor Compliance Group and is co-head of the Non-Compete & Trade Secrets Group. He has extensive experience representing employers in both single-plaintiff and class action matters, as well as in arbitration proceedings. He also regularly assists federal government contractors with the many special employment-related compliance challenges they face.

Guy represents employers in all aspects of employment and labor litigation and counseling, with an emphasis on non-compete and trade secrets issues, medical and disability leave matters, employee/independent contractor classification issues, and the investigation and litigation of whistleblower claims. He assists employers in negotiating and drafting executive agreements and employee mobility agreements, including non-competition, non-solicit and non-disclosure agreements, and also conducts and supervises internal investigations. He also regularly advises clients on pay equity matters, including privileged pay equity analyses.

Guy advises federal government contractors and subcontractors all aspects of Office of Federal Contract Compliance Programs (OFCCP) regulations and requirements, including preparing affirmative action plans, responding to desk audits, and managing on-site audits.

Photo of Laura Fant Laura Fant

As an associate in the Labor & Employment Law Department and co-chair of the Disability, Accommodations & Leave Management Practice Group, Laura Fant frequently counsels on employee leave and accommodation matters involving the Americans with Disabilities Act, the Family and Medical Leave Act…

As an associate in the Labor & Employment Law Department and co-chair of the Disability, Accommodations & Leave Management Practice Group, Laura Fant frequently counsels on employee leave and accommodation matters involving the Americans with Disabilities Act, the Family and Medical Leave Act and related state and local laws. She also provides general employment counseling and has experience reviewing and updating employee handbooks and company policies, as well as providing training on topics such as discrimination and harassment in the workplace, social media, and the accommodation of physical and mental disabilities. Laura is a frequent contributor to Proskauer’s Law and the Workplace blog.

Before joining the Firm, Laura was assistant general counsel to the City of New York’s Office of Labor Relations. Prior to that, she was law clerk to Judge Jose L. Fuentes of the New Jersey Superior Court, Appellate Division, and a judicial intern to Judge Laura Taylor Swain of the U.S. District Court for the Southern District of New York.

Raymond Arroyo

Raymond Arroyo is a law clerk in the Labor Department and a member of the Employment Litigation & Arbitration Group.