While contractors and other businesses were quick to hail the U.S. Occupational Safety and Health Administration for its announcement it is withdrawing the Biden administration's COVID-19 vaccination or testing emergency mandate for employers with 100 or more employees issued last November, the agency said it would still propose the requirement as a rule, which would have a more lengthy federal rule making approval process.
Publication of the change in the Federal Register is set for Jan. 26, the agency said.
Under federal workplace health and safety law, OSHA's Emergency Temporary Standard is also a proposed rule, which received robust participation from more than 100,000 commenters that will be available for public review, OSHA said. The agency "has affirmed that the ETS withdrawal does not affect [its] continuing status as a proposed rule," a U.S. Labor Dept. spokesperson said in a statement. "OSHA is evaluating the record and the evolving course of the pandemic" but "has made no determinations at this time about when or if it will finalize a vaccination and testing rule."
A key requirement of OSHA's rule making process is internal and external stakeholder input, more lengthy and involved than for the emergency temporary standard. A U.S. Supreme Court majority found the vaccination/testing ETS was likely to be successfully challenged in court, halting the standard earlier this month in an 6-3 vote.
Because of OSHA's ETS withdrawal, the merits of the current legal challenge now will not be heard by the U.S. appeals court in Cincinnati or again by the high court, itself.
"The Biden administration is right to abandon its misguided vaccine emergency rule and we encourage ... the same with a similar measure affecting federal contractors that we are also challenging in court,” said Stephen E. Sandherr, Associated General Contractors of America CEO. “At the same time, we will continue to work with the administration to ensure its permanent vaccine rule making applies only to workers in industries like healthcare that OSHA deems at high risk from the coronavirus."
While a potential vaccination-or-test rule that considers comment from stakeholders in individual industries such as construction could potentially be supported by AGC or the other major industry group that challenged the ETS, the Associated Builders and Contractors of America, both are skeptical of any potential rule that covers all employers with 100 or more employees.
"We do expect OSHA will ask for additional information and we fully expect the agency to focus its rule making on covering only those occupations—like health care—already identified as being at high risk of exposure," said Brian Turmail, AGC vice president. "We think this entire rule making has been a colossal waste of time and resources by the administration. Instead of crafting conflicting, confusing and coercive rules, their time would have been better spent working with groups like ours to educate and encourage more workers to get vaccinated. We would have loved to partner with the administration in our most-recent series of vaccine PSAs and in our upcoming Spanish language version of them as well."
ABC contends that it will challenge in court any proposed rule that covers such a large swath of businesses without regard to industry or occupation.
"It is clear to ABC, based upon the Supreme Court’s decision, that the ETS cannot be enforced in its present form and OSHA had no choice but to withdraw it," said Ben Brubeck, ABC vice president. "Any attempt by OSHA to proceed to develop a new standard following notice and comment that does not satisfy the Supreme Court’s criteria will again be challenged in the courts by ABC."
The National Federation of Independent Business, whose attorney successfully argued the ETS halt before the Supreme Court, shared the two groups' sentiment.
"As NFIB argued ... OSHA does not have the emergency authority to regulate the American workforce with such a mandate and we are pleased the Court agreed," said Karen Harned, executive director of its small business legal center, in a statement. "We urge OSHA to also withdraw the proposed rule as small businesses continue to face extraordinary challenges and this mandate would exacerbate those."