OSHA Withdraws Vaccine ETS

The Occupational Safety & Health Administration (OSHA) withdrew in-part the Emergency Temporary Standard (ETS) in response to the stayed issued by the Supreme Court of the United States.  NPGA’s counsel was the only business representative to argue before the Supreme Court; strategically pushing the propane industry to the forefront of an extremely small collection of trade associations heard by the Court.  In a decision of 6 to 3, the Court determined that the ETS by OSHA is outside the limits of the agency’s power as authorized by Congress.  The ETS mandated vaccination or testing and face covering policies for all companies with 100 or more employees.

OSHA withdrew the ETS in-part, but the agency will keep the docket open as a proposed rule.  The agency accepted comments on the terms of the ETS until the deadline of January 19^th.  OSHA may continue through the rulemaking process to refine the scope and terms of the ETS.  To do so, the agency must issue a new proposal that responds to criticisms of the Court as well as comments submitted before the deadline.

The Supreme Court’s decision sent the litigation back to the U.S. Court of Appeals for the Sixth Circuit where, given the recent withdrawal of the ETS rulemaking, the case will be dismissed as moot.  Where does this leave employers and employees?

1. OSHA issues a new proposal. The agency may review the docket and, in conjunction with Court opinions, draft a new proposal.  It’s most likely that the new proposal narrows applicability to industries reporting higher workplace infections of COVID-19 via OSHA 300 reporting logs.
2. OSHA closes the docket. The mutation of COVID-19 may extend beyond the ability of employers to reasonable track infection, and cause the agency to officially close the rulemaking docket.
3. Presidential Action. At the direction of President Joe Biden, the docket may remain open but without action for the length of his presidency.  The docket may remain open until a new president is elected to office.

NPGA advocated for our members through the OSHA rulemaking on the ETS and provided guidance materials for the ETS as well as guidance and FAQs on the primary requirements of vaccination executive orders for federal contractors and subcontractors.  The heart of the NPGA’s advocacy is not premised on the value or efficacy of COVID-19 vaccines, but rather the recognition that our members have taken extraordinary measures to protect our employees, customers, and communities during the pandemic and the immediate irreparable harm of losing employees, incurring substantial compliance costs, and worsening already fragile supply chains and labor markets.

Please direct any questions to Sarah Reboli, NPGA Senior Director of Regulatory & Industry Affairs.