WASHINGTON – The Biden administration is formally withdrawing its requirement that most workers be vaccinated or regularly tested for COVID-19 – the controversial rule the Supreme Court blocked from enforcement earlier this month.
The administration is asking the Sixth Circuit Court of Appeals to dismiss the case. That court was hearing a pending legal challenge to the rule.
But the federal agency that regulates workplace safety said Tuesday it is still considering whether the vaccinate-or-test rule should be imposed on a non-emergency basis, which could have a better chance of surviving another legal challenge, if it is more narrowly targeted.
The Occupational Safety and Health Administration said that although it is withdrawing the vaccination and testing rule as “an enforceable emergency temporary standard,” it is not fully nixing the proposal.
A Labor Department spokesperson told USA TODAY the agency is reviewing the more than 100,000 public comments received and “has made no determinations about when or if” it will come out with a new version.
Still, the agency emphasized it is “prioritizing” a workplace standard for healthcare workers.
The more expansive workplace rule had applied to businesses with at least 100 employees. It was challenged by a number of GOP-led states as well as some businesses and advocacy groups.
Chris Spear, the head of the American Trucking Associations, said the rule would have been disastrous for “an already-overstressed supply chain.”
“The Supreme Court bounced it, and we are pleased to see the agency has now formally withdrawn it, sending this (rule) to the dustbin where it belongs,” Spear said in a statement.
In issuing a stay this month, the Supreme Court said opponents of the emergency rule would likely win if their challenges received a full hearing by lower courts. A majority of the court said Congress hadn’t given OSHA the broad authority to impose such a sweeping requirement.
By withdrawing the rule, the Labor Department may have been trying to prevent a full hearing that could have resulted in a court decision even more restrictive on future actions, said Chatrane Birbal, vice president of government relations for HR Policy Association, which represents human resource officers at more than 400 major companies.
While the withdrawal was anticipated, employers still face uncertainty. Businesses that receive government contracts are waiting for the courts to rule on whether the administration can require their workers be vaccinated.
And some businesses have operations both in jurisdictions that require workers to be vaccinated and those that block such mandates.
“Now the prospect is, are we going to face a growing number of states that have conflicting or differing regulations in this area?” said Greg Hoff, associate council for HR Policy Association. “How many different rules are we have going to have to comply with in the absence of a single federal standard?”
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In issuing the workplace rule, OSHA had used its emergency authority to bypass the lengthy comment and rulemaking process, arguing that the pandemic met the necessary standard of a “grave danger.”
But the agency also began taking comments in November on whether the standard should be made permanent.
While a permanent rule wouldn’t have to clear the “grave danger” threshold, a majority of the Supreme Court justices seem likely to scrutinize any workplace requirement that’s too broadly applied.
“I would think that they would have to so some substantial reworking,” Hoff said, “to make it more targeted.”
‘This too shall pass away’ this famous Persian adage seems to be defeating us again and again in the case of COVID-19. Despite every effort