OSHA announced today that it plans to withdraw its Emergency Temporary Standard (ETS), effective upon its publication in the Federal Register tomorrow. The Supreme Court ruled earlier this month to block enforcement of the OSHA ETS and signaled that if it were to come before the Court again it was likely to be overturned.
OSHA indicated that withdrawing the ETS does not impact its status as a proposed rule, and it is anticipated that the agency will issue a new workplace rule. Department of Labor Secretary Marty Walsh noted, "The Supreme Court opened up a couple of potential different areas which we'll explore. They talked about assembly line, medical — there’s like three or four general areas that you could read into. We could do something there."
The Supreme Court ruled 6-3 to return the mandate’s legal challenges to the lower courts to decide on the merits. That ruling heavily signaled that the Court would not be favorable to the ETS if it returned for consideration on the merits, noting that, “Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly. Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category.”
Argentum submitted comments in response to the ETS to formally share our concerns with the ETS and its potential impact on senior living providers.
While the OSHA ETS has been withdrawn, please note that the CMS Interim Final Rule (IFR) was allowed to proceed based on the Supreme Court’s ruling, although this mandate applies only to Medicare and Medicaid-certified facilities, and does not apply to assisted living facilities, including providers of Home and Community-based Services. Argentum submitted comments to the IFR earlier this month reiterating the lack of authority by CMS to regulate assisted living.