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January 27, 2022

Fed OSHA Withdraws Vaccine-or Test Mandate for Large Employers

The Federal Occupational Safety and Health Administration (OSHA) announced that it is withdrawing the Biden administration’s temporary COVID-19 vaccine-or-test requirement for large employers. The decision was made in light of the Supreme Court’s decision blocking the rule.

OSHA’S emergency temporary standard (ETS), issued Nov. 5, compelled companies with more than 100 workers to ensure their employees be vaccinated or tested weekly.  However, the Supreme Court ruled that OSHA does not have the power to “regulate public health more broadly,” and that “[r]equiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category.”

Even though OSHA’s withdrawal of the ETS became effective Jan. 26, the agency said it intends to issue a similar rule through regular notice and rulemaking. Such a move will surely be challenged in the courts, particularly in light of the Supreme Court’s opinion which said it was the purview of Congress, not the courts, to promulgate such measures.