It appears that we have arrived at some finality in the on-again-off-again life cycle of OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS). On January 13, 2022, the U.S. Supreme Court ordered a stay of the ETS, holding that Congress had not given OSHA the authority to issue such a sweeping regulation addressing a general public health concern. In response, effective January 26, 2022, OSHA has withdrawn the ETS.

Given the Court’s determination that OSHA had likely exceeded its authority here, large employers have understandably set aside their immediate plans to implement the ETS vaccine/testing protocols. However, important considerations remain because many carriers continue to face customer vaccination requirements as well as the Canadian vaccination requirement for drivers crossing the border into Canada. Although the ETS is withdrawn, OSHA has reserved the right to continue its normal rulemaking process that may result in a standard that briefly directly addresses protections from COVID-19 in some form. While that rule is developed, we anticipate that OSHA may now pivot to a heightened focus on the enforcement of existing workplace safety standards to ensure employers are taking the necessary steps for the safety of workers. Therefore, we recommend that employers remain vigilant in their workplace safety protocols, which may include masking, social distancing, quarantining, and monitoring of CDC recommendations.