As has been widely reported, on January 26 the federal Occupational Safety & Health Administration (OSHA) withdrew its emergency temporary standard (ETS) that would have required employers with more than 100 employees to mandate that certain staff either be vaccinated or regularly tested for COVID-19. The move follows the U.S. Supreme Court’s decision to reimpose a stay on immediate enforcement of the ETS while litigation continued, which we wrote about here. The move to withdraw the ETS effectively ends the current litigation.

One important caveat to note is that OSHA has only withdrawn the ETS to the extent that it creates an immediately enforceable emergency standard. As the notice of withdrawal makes clear, OSHA has not withdrawn a proposed permanent vaccine-or-test rule, based on the ETS, that is using the agency’s regular notice and comment rulemaking process. This means that OSHA could issue another, permanent vaccine-or-test rule in the future, possibly in the next six to nine months.

Under the federal Occupational Safety and Health Act, when OSHA issues an ETS (which is usually only enforceable for six months) the emergency rule also automatically serves as a proposal for a permanent rule through the rulemaking process. In effect, an emergency temporary standard is a placeholder for OSHA to address a “grave danger” to workplace safety right away while buying the agency time to pass a permanent rule addressing the issue through the regular (and lengthy) notice and comment rulemaking process. In the case of the permanent vaccine-or-test rule, OSHA took written comments until January 19, and has not yet set dates for public hearings or additional comment periods for the rule. According to the rulemaking docket, over 120,000 comments were made on the proposed permanent vaccine-or-test rule during the comment period.

If OSHA eventually passes a permanent vaccine-or-test rule, Washington will be required to adopt a similar mandate that is “at least as effective” as the federal rule under the state’s State Plan with U.S. Department of Labor. For now, Governor Inslee’s office has said that Washington will wait until the remaining legal issues surrounding federal vaccine-or-test rules are resolved before issuing state rules on an employer vaccine mandate.