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OSHA withdraws its workplace vaccine rule

In this Sept. 14, 2021, file photo, a syringe is prepared with the Pfizer COVID-19 vaccine at a clinic at the Reading Area Community College in Reading, Pa.Matt Rourke/Associated Press

The Biden administration is withdrawing its requirement that large employers mandate workers be vaccinated or regularly tested, the Labor Department said Tuesday.

In pulling the rule, the department recognized what most employers and industry experts said after a Supreme Court ruling this month — that the emergency temporary standard could not be revived after the court blocked it.

“It’s their admitting what everyone had been saying, which is that the rule is dead,” said Brett Coburn, a lawyer at Alston & Bird.

The Supreme Court’s decision, which was 6-3, with the liberal justices in dissent, said the Labor Department’s Occupational Safety and Health Administration did not have the authority to require workers to be vaccinated for the coronavirus or tested weekly, describing the agency’s approach as “a blunt instrument.” The mandate would have applied to some 80 million people if it had not been struck down.

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“OSHA has never before imposed such a mandate. Nor has Congress,″ the court’s majority wrote. “Indeed, although Congress has enacted significant legislation addressing the COVID-19 pandemic, it has declined to enact any measure similar to what OSHA has promulgated here.’’

The justices left in place a vaccine mandate for health care providers who receive federal Medicare or Medicaid funding. That rule affects 10.4 million workers.

Corporations have been split over whether to mandate employee vaccinations. United Airlines began requiring vaccines in August; the company says 99 percent of its workers have been vaccinated or have requested medical or religious exemptions. Tyson Foods, which also announced a mandate in August, says 96 percent of its workers were vaccinated by a Nov. 1 deadline.

But other big businesses, including Starbucks and General Electric, scrapped previously announced vaccine mandates for their employees after the Supreme Court’s ruling.

The Labor Department’s decision to withdraw the rule means that the outstanding legal proceedings will be dropped. The case was headed back to the Sixth US Circuit Court of Appeals in Cincinnati for further consideration, although that court most likely would have followed the Supreme Court’s lead and struck it down.

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OSHA could still try to move a version of the vaccine-or-test standard forward through its official rulemaking process, such as one focused on high-hazard industries like meatpacking, but that would likely still face legal challenges, according to David Michaels, a former OSHA administrator and a professor at George Washington University.

Without the Labor Department’s standard in effect, employers are subject to a patchwork of state and local laws on COVID-19 workplace safety, with places like New York City requiring vaccine mandates and other governments banning them.

“OSHA continues to strongly encourage the vaccination of workers against the continuing dangers posed by COVID-19 in the workplace,” the Labor Department wrote in the notice of its withdrawal.

Material from the Associated Press was used in this report.