By Jack Phillips
The federal Occupational Safety and Health Administration (OSHA) announced Tuesday it will formally withdraw its COVID-19 vaccine mandate for private businesses with 100 or more employees on Wednesday.
The agency issued an announcement in the Federal Register that it will withdraw its rule, known as an emergency temporary standard (ETS), which required companies to make employees either get a COVID-19 vaccine or submit to weekly COVID-19 testing while wearing masks in the workplace.
It comes after the Supreme Court on Jan. 13 issued a 6–3 opinion blocking the rule, saying that challengers to the order, including large trucking companies, were likely to prevail in court.
Published Tuesday (pdf), OSHA said that “this agency action becomes effective immediately both because there is good cause and because the action removes a requirement on the regulated community.”
“Notwithstanding the withdrawal of the Vaccination and Testing ETS, OSHA continues to strongly encourage the vaccination of workers against the continuing dangers posed by COVID-19 in the workplace,” OSHA continued.
At the same time, the agency said it is moving forward with a proposal to make the emergency temporary directive a permanent standard.
The agency added that more public comments on the mandate’s withdrawal would be “impracticable, unnecessary, and contrary to the public interest because it would unnecessarily delay the resolution of ambiguity for employers and workers alike.”
According to the document, the rule that formally withdraws the vaccine-or-test mandate will be published in the Federal Register on Wednesday, Jan. 26.
The Supreme Court described OSHA’s rule as a “significant encroachment into the lives—and health—of a vast number of employees” across the country. “Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly,” the court ruled.
At the same time, the Supreme Court upheld the vaccine mandate that applies to health care workers who were employed at Medicaid- or Medicare-funded facilities. Days later, a Texas federal judge halted the Biden administration’s vaccine mandate for federal employees.
“This case is not about whether folks should get vaccinated against COVID-19—the court believes they should,” Judge Jeffrey Brown wrote on Jan. 21. “It is instead about whether the president can, with the stroke of a pen and without the input of Congress, require millions of federal employees to undergo a medical procedure as a condition of their employment,” the order said.
Following the Supreme Court decision, a number of large companies halted their respective vaccine mandates. Among others, Starbucks said last Tuesday that it respects the Supreme Court ruling and “will comply” with the order.
Some states recently demanded OSHA withdraw the vaccine-or-test mandate.
“Both the Supreme Court and the American people have spoken, and they have loudly said the Biden administration’s attempts at forcing this mandate on Americans and businesses are not only wrong, but also unconstitutional,” said Georgia Gov. Brian Kemp, a Republican, in a Monday statement.
Following the Supreme Court’s decision, Department of Labor Secretary Marty Walsh said he was disappointed in the court’s decision.
He added, “OSHA will do everything in its existing authority to hold businesses accountable for protecting workers, including under the COVID-19 National Emphasis Program and General Duty Clause.”
“OSHA will be evaluating all options to ensure workers are protected from this deadly virus,” Walsh said at the time. According to data published by Johns Hopkins University, COVID-19 has a U.S. mortality rate of about 1 percent.