OSHA Withdraws ETS

On January 25, 2022, OSHA announced it will be withdrawing its ETS effective January 26, 2022. The announcement notes that the text of the ETS will remain in place to solicit additional comments from the public so OSHA can “prioritiz[e] its resources to focus on finalizing a permanent COVID-19 Healthcare Standard.” If OSHA pursues this approach, the final rule will be published no later than May 5, 2022.

For now, this withdrawal nullifies the ETS and discontinues the OSHA ETS litigation currently pending before the Sixth Circuit. It also, along with the Supreme Court’s stay of the OSHA ETS earlier this year, leaves multi-state private employers (who are not otherwise covered by the CMS vaccination mandate) to navigate a patchwork of ever-evolving state and local laws on COVID-19 mitigation measures. These employers must comply with all applicable state and local laws, as the OSHA ETS will not preempt any conflicting state or local law.

For example, OSHA’s January 25 announcement confirmed that the 22 states that have state OSHA-approved plans are free to issue or withdraw their own COVID-19 health and safety regulations without regard to federal OSHA activities. Consequently, we could see state and local authorities implement vaccine mandate requirements for broader categories of employees (i.e., beyond those working in healthcare/nursing homes or for state/local governments) while other jurisdictions (such as Montana and Tennessee) have imposed bans on employer vaccine mandates entirely, and still others have imposed various limitations on such mandates.

Executive Order for Federal Employees – Texas Decision

On January 21, 2022, U.S. District Judge Jeffrey Brown of Texas issued an order granting a nationwide preliminary injunction of Executive Order 14043, which requires vaccination of all federal employees. The Court in Feds for Medical Freedom v. Biden cited cases finding that 5 USC § 3301 was an insufficient basis for upholding the authority of the president to regulate federal employees, stating that the statutory text of § 3301 makes no reference to federal employees.

The Court also found that 5 USC § 7301 was insufficient to support the vaccine mandate, reasoning that the president’s ability to regulate pursuant to § 7301 is limited to “workplace conduct,” not federal employees’ conduct in general. The Court stated, “[a]ny broader reading would allow the President to prescribe, or proscribe, certain behaviors by civilian federal workers outside the context of their employment.”

The Court decided a nationwide injunction was appropriate because the group of plaintiffs consisted of over 6,000 members spread across every state and in nearly every federal agency.

The Court’s decision is at odds with several other decisions on executive orders implemented under 5 USC § 7301, which have required things such as mandating that every federal executive agency establish a random drug testing program for civilian employees who hold safety and security-related positions. See, e.g., Gulf Coast Indus. Workers Union v. Exxon Co., USA, 991 F.2d 244 (5th Cir. 1993).

This decision is also contrary to earlier decisions on the federal employee vaccination requirement cases, where courts have declined to grant injunctive relief, specifically:

• Church v. Biden (D. D.C. 11/8/21) (military and civilian military employees)
• Smith v. Biden (D. N.J. 11/8/21) (DOJ/Federal Bureau of Prisons; SSA)
• Jensen v. Biden (E.D. Wash. 11/19/21) (unspecified; plaintiff pro se)
• Rydie v. Biden (D. Md. 11/19/21) (FDA, Defense Information Systems Agency)
• Rodden v. Fauci (S.D. Tex. 11/27/21) (ICE, Department of the Navy, FAA, Department of Agriculture, Secret Service, and TSA) (noting “the Court does not have ‘jurisdiction of a bill to enjoin the President in the performance of his official duties.’”)
• McCray v. Biden (D. D.C. 12/7/21) (IRS) (claims unripe – but also casts doubt on “whether injunctive relief against the President [i]s available” at all. Franklin v. Massachusetts, 505 U.S. 788, 803 (1992).)
• Brass v. Biden (D. Colo. 12/23/21) (Department of Commerce)

Relatedly, U.S. District Judge Stan Baker’s decision to implement a nationwide stay of the mandate for federal contractors is currently on appeal in Georgia v. Biden. The parties are still in the process of briefing their arguments to the Eleventh Circuit.