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Biden’s Shot-or-Test Rule Abandoned After Supreme Court Loss (2)

Jan. 25, 2022, 2:09 PMUpdated: Jan. 25, 2022, 9:31 PM

The Biden administration is withdrawing its Covid-19 shot-or-test rule for workers at large employers in the wake of a U.S. Supreme Court ruling that blocked the measure from taking effect.

The announcement was posted Tuesday in the advanced version of the Federal Register. Government lawyers followed that notice with a motion asking a Cincinnati-based federal appeals court to dismiss the pending legal challenge to the emergency temporary standard, saying its withdrawal of the rule will moot the case.

“The Vaccination and Testing ETS’s requirements, which are currently stayed, will no longer be in effect, and petitioners will no longer be subject—or face any risk of being subject—to the challenged requirements from which they sought relief,” the administration said in its motion.

The Occupational Safety and Health Administration rule, issued Nov. 5, mandated most employers with 100 or more workers to either require employees to be fully vaccinated or pass at least weekly a Covid-19 test. The mandate’s future had been in doubt since Jan. 13, when the U.S. Supreme Court in 6-3 decision said OSHA couldn’t enforce the standard while an appeals court considered the rule’s legality.

The high court’s six conservative justices called the measure an unauthorized exercise of agency power and that the challengers—a coalition of Republican states’ attorneys general and business groups—were likely to prevail on the merits.

The majority’s reasoning meant that even if the U.S. Court of Appeals for the Sixth Circuit backed the standard, the Supreme Court was all-but certain to again rule that it exceeded OSHA’s legal authority to prevent workplace health hazards.

By withdrawing the standard, OSHA avoids the possibility that the Sixth Circuit or the Supreme Court would issue a decision restricting existing or future regulations, said Travis Vance, a partner with Fisher Phillips LLP in Charlotte, N.C., and member of the firm’s Covid-19 task force.

Rulemaking Continues

As part of the withdrawal announcement, OSHA said it will continue to work on a permanent Covid-19 standard.

The high court said OSHA has the power to regulate risks related to Covid-19 that are “occupation-specific” based on a worker’s job or workplace, giving the agency a lane to issue a narrower rule to protect workers from the coronavirus.

The decision to withdraw the temporary standard doesn’t prevent OSHA from continuing to pursue a permanent version of the vaccination and testing standard, said Alka Ramchandani-Raj, a shareholder with Littler Mendelson P.C. in Walnut Creek, Calif., and co-chair of the firm’s workplace safety and health practice. .

For a permanent rule, OSHA wouldn’t need to prove there was a “grave danger” since the grave danger threshold only applies to emergency temporary standards, Ramchandani-Raj said.

OSHA Deputy Administrator James Frederick during a Tuesday occupational health webinar said the agency wasn’t withdrawing the emergency standard as a proposed rule.

“We will prioritize the agency’s resources to focus on finalizing a permanent health-care standard,” he said, noting OSHA’s infectious disease rule for health care, in development since 2010, has already completed a required small business review.

Without a specific infectious disease standard, OSHA will continue to enforce existing rules as requirements for respirators, Frederick said.

OSHA withdrew a Covid-specific emergency temporary standard for the health-care industry on Dec. 27, saying it had been unable to issue a permanent rule within six months as required by law because its rulemaking resources had been diverted to the large employer shot-or-test standard.

Several unions have asked a federal appeals court to issue a permanent version of the health-care Covid-19 standard.

(Updated with attorney and OSHA comments on continuation of rulemaking.)

To contact the reporters on this story: Bruce Rolfsen in Washington at BRolfsen@bloomberglaw.com; Robert Iafolla in Washington at riafolla@bloomberglaw.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Melissa B. Robinson at mrobinson@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com