In response to the U.S. Supreme Court’s recent ruling that stopped OSHA from enforcing its mandatory COVID vaccination Rule for large employers, OSHA announced on January 25, 2022, that it is withdrawing the Rule. OSHA introduced the Rule as an emergency temporary rule in October 2021. The Rule applied to all employers nationwide with 100 or more employees, with only extremely limited exceptions. It was set to go into effect in December 2021, but a federal judge issued a nationwide injunction prohibiting OSHA from implementing the Emergency Rule.

After procedural moves resulted in the Sixth Circuit Court of Appeals being assigned the case, a three-judge panel in late December 2021 lifted the injunction. That opened the door for OSHA to begin implementation of the Rule in early January 2022, with enforcement to begin in February 2022.

Instead, the U.S. Supreme Court heard the matter on an expedited basis, taking oral arguments on January 7, 2022. The following week, the Court reinstated the injunction and blocked OSHA from implementing the Rule while the matter was being decided on its merits in the courts. Taking its cue from the Supreme Court’s written decision reinstating the injunction, OSHA apparently concluded that its argument was unlikely to prevail before the lower courts. Hence the withdrawal of the Rule, effective Wednesday, January 26.

What’s next

Instead, OSHA said that at this time it is working to introduce a new permanent standard for health care workers. At the same time it blocked the large employer Rule, the Supreme Court upheld enforcement of a more limited Emergency Temporary Rule requiring COVID vaccinations for health care employers who accepted Medicare/Medicaid funds. But that Emergency Rule is set to expire soon and needs to be replaced by a permanent rule. OSHA did not indicate when it expected the new Rule to be introduced, but the standard rulemaking process usually takes several months.

Employers having questions or needing assistance may contact me at scott.atwood@henlaw.com or by phone at 239-344-1287.