The Biden Administration has withdrawn its Covid shot-or-test mandate for large businesses.  The mandate, issued by OSHA through an Emergency Temporary Standard (ETS), requires all employers with 100 or more employees to implement a policy requiring Covid vaccinations or masking and weekly testing for all employees.  That requirement went into effect on January 10, 2022.  However, the U.S. Supreme Court stayed the mandate on January 13, 2022.

On January 25, 2022, the announcement regarding the withdrawal of the mandate was posted in the advanced version of the Federal Register.  Thereafter, government lawyers filed a motion with the 6th Circuit Court of Appeals (the Court currently hearing the case regarding the OSHA ETS) to dismiss the pending legal challenge, saying withdrawal of the mandate renders the case moot.

This officially ends the ETS and the legal challenges thereto.  At this point, OSHA will have to go through the normal rulemaking procedure, should it wish to implement any of the provisions of the ETS.  That process would take months.

Even though the OSHA ETS is dead, employers should remain mindful of what we wrote in our last client alert:  “Shortly after the [Supreme Court] decision was issued, Secretary of Labor, Marty Walsh, stated OSHA will react quickly to employee complaints that employers are not implementing safe workplace practices (mainly CDC guidelines) regarding Covid and will use the General Duty Clause (which OSHA says will be enforced by mostly looking to CDC guidelines).”   This statement should not be taken lightly.  This is a signal that employers who have spikes in workers showing up to work and testing positive will be cited and required to implement “abatement” steps required by OSHA.  Therefore, employers should ensure they are following CDC guidance regarding Covid mitigation strategies.

If you have any questions about this Legal Update, please contact Attorney Joel Aziere at JAziere@buelowvetter.com or (262) 364-0250 or your Buelow Vetter attorney.