As we previously blogged, the Supreme Court recently blocked enforcement of OSHA’s vaccine mandate for large employers on the grounds that OSHA lacked authority to issue a rule related to public health threats, as opposed to strictly “occupational” health hazards. As a result, the vaccine mandate was stayed pending resolution of litigation in the 6th Circuit. However, rather than continue to defend the mandate in the lower courts, OSHA instead opted to simply withdraw the mandate on January 25, 2022, thereby rending any further judicial review of the mandate moot.
However, this doesn’t necessarily mark the end of the vaccine mandate. In its notice of withdrawal, OSHA stated that “Although OSHA is withdrawing the Vaccination and Testing ETS as an enforceable emergency temporary standard, OSHA is not withdrawing the ETS to the extent that it serves as a proposed rule.” This means that although the emergency temporary version of the mandate that was considered by the Supreme Court is dead in the water, there is a chance that it could be resurrected as a permanent standard. The question, however, is what such a standard would look like. In light of the Supreme Court’s recent decision, a permanent standard that mirrors the temporary standard would likely be shut down in a similar fashion. Thus, it remains an open question what kind of changes OSHA will make to the mandate in order to ensure it survives judicial scrutiny.
Thatcher Zavaro & Mani will continue to monitor the situation as it unfolds. If you have questions about COVID-19, or any other area of employment law, contact Thatcher Zavaro & Mani at 301-850-1246. www.ThatcherLaw.com. Follow us on: