After weeks of consternation, uncertainty and litigation, the fate of OSHA’s Emergency Temporary Standard (“ETS”), which required employers with 100 or more employees to implement mandatory COVID vaccination policies, is now sealed – and it has been done by OSHA itself.

After the U.S. the Supreme Court issued its decision to stay the OSHA mandate on January 13, raising serious concerns about OSHA’s authority to address matters of public health through workplace safety regulations, OSHA begrudgingly “cried uncle” and gave up the battle. On January 26, 2020 OSHA issued a formal notice in the Federal Register stating that it was withdrawing its November 5, 2021 ETS. It did, however, state that it was not withdrawing the ETS to the extent it serves as a proposed rule (without further elaboration) and “strongly encouraged” the vaccination of workers against the dangers of COVID-19 in the workplace.

What this means is that OSHA is out of the vaccine mandate business, at least for now. Unless it issues another vaccine proposal through its traditional rule-making procedures, OSHA will focus its efforts preventing the transmission of COVID in the workplace. See, https://www.osha.gov/coronavirus/safework. Employers can therefore decide for themselves whether they will require their employees to be vaccinated (unless mandated by another federal or state agency) and how they can best protect their employees and customers from the risks presented by the virus, looking to the above-cited OSHA materials for further guidance.

If you have any questions about the ETS, mandatory vaccination policies, reducing the risks of COVID transmission in the workplace, or other employment issues related to the COVID pandemic, feel free to contact Wessels Sherman attorney Alan Seneczko at alseneczko@wesselssherman.com or (262) 560-9696.