OSHA Withdraws ETS on COVID-19 Vaccination and Testing

OSHA is prohibited from enforcing any provisions of the emergency temporary standard after the U.S. Supreme Court issued a stay in mid-January.

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The Occupational Safety and Health Administration (OSHA) is formally withdrawing its Emergency Temporary Standard (ETS) on COVID-19 vaccination and testing for large employers as an enforceable emergency temporary standard, effective January 26. However, OSHA is not withdrawing the ETS to the extent that it will still serve as a proposed agency rulemaking.

In a letter to members, the National Lumber and Building Material Dealer’s Association (NLBMDA) said the action by OSHA will “essentially preserve the status of the ETS” as a notice-and-comment rulemaking, while technically removing the ETS designation. The NLBMDA said it is unclear whether the move by OSHA is legally permissible under the federal statue and will seek further clarity from OSHA in the coming weeks.

OSHA will still be prohibited from enforcing any provisions of the ETS. The U.S. Supreme Court issued a stay against the ETS on January 13, blocking OSHA from enforcing the provisions of the ETS while the case is reconsidered by the Sixth Circuit Court of Appeals.

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