[Federal Register Volume 87, Number 17 (Wednesday, January 26, 2022)]
[Rules and Regulations]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-01532]
DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1910
[Docket No. OSHA-2020-0007]
COVID-19 Vaccination and Testing; Emergency Temporary Standard
AGENCY: Occupational Safety and Health Administration (OSHA), Labor.
ACTION: Interim final rule; withdrawal.
SUMMARY: OSHA is withdrawing the November 5, 2021, emergency temporary
standard (ETS) which was issued to protect unvaccinated employees of
large employers (100 or more employees) from the risk of contracting
COVID-19 by strongly encouraging vaccination.
DATES: The withdrawal is effective January 26, 2022.
ADDRESSES: In accordance with 28 U.S.C. 2112(a), the agency designates
Edmund C. Baird, Associate Solicitor of Labor for Occupational Safety
and Health, Office of the Solicitor, U.S. Department of Labor, to
receive petitions for review of this agency action. Service can be
accomplished by email to zzSOL-Covid19-ETS@dol.gov.
FOR FURTHER INFORMATION CONTACT:
General information and press inquiries: Contact Frank Meilinger,
Director, Office of Communications, U.S. Department of Labor; telephone
(202) 693-1999; email email@example.com.
For technical inquiries: Contact Andrew Levinson, Directorate of
Standards and Guidance, U.S. Department of Labor; telephone (202) 693-
I. Background and Rationale for Withdrawal
On November 5, 2021, OSHA adopted an emergency temporary standard
(the Vaccination and Testing ETS), under sections 4, 6(c), and 8 of the
Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655(c),
657), to protect unvaccinated employees of large employers (100 or more
employees) from the risk of contracting COVID-19 by strongly
encouraging vaccination (86 FR 61402). The Vaccination and Testing ETS
required covered employers to develop, implement, and enforce a
mandatory COVID-19 vaccination policy, with an exception for employers
that instead adopted a policy requiring employees to either get
vaccinated or elect to undergo regular COVID-19 testing and wear a face
covering at work in lieu of vaccination. That ETS also serves as a
``proposed rule'' for a ``proceeding'' to promulgate an occupational
safety or health standard. 29 U.S.C. 655(c)(3); see 29 U.S.C. 655(b).
On January 13, 2022, the U.S. Supreme Court stayed the Vaccination
and Testing ETS, finding that challengers were likely to prevail on
their claims. Nat'l Fed'n of Indep. Bus. v. Dep't of Labor, 595 U.S.
__, __(2022) (per curium) (slip op. at 5, 9). After evaluating the
Court's decision, OSHA is withdrawing the Vaccination and Testing ETS
as an enforceable emergency temporary standard. To the extent that this
withdrawal is not already generally exempt from the notice and comment
requirements of the Administrative Procedure Act and the OSH Act, OSHA
finds good cause that the opportunity for public comment on this
withdrawal is impracticable, unnecessary, and contrary to the public
interest within the meaning of 5 U.S.C. 553(b)(B), and 29 U.S.C. 655(b)
because it would unnecessarily delay the resolution of ambiguity for
employers and workers alike. This agency action becomes effective
immediately both because there is good cause and because the action
removes a requirement on the regulated community. 5 U.S.C. 553(d)(1),
Although OSHA is withdrawing the Vaccination and Testing ETS as an
enforceable emergency temporary standard, OSHA is not withdrawing the
ETS to the extent that it serves as a proposed rule under section
6(c)(3) of the Act, and this action does not affect the ETS's status as
a proposal under section 6(b) of the Act or otherwise
affect the status of the notice-and-comment rulemaking commenced by the
Vaccination and Testing ETS. See 29 U.S.C. 655(c)(3).
Notwithstanding the withdrawal of the Vaccination and Testing ETS,
OSHA continues to strongly encourage the vaccination of workers against
the continuing dangers posed by COVID-19 in the workplace.
II. Minor Revisions to Sec. 1910.504 and Sec. 1910.509
OSHA has removed the reference to Sec. 1910.501 from the
introductory text of the Mini Respiratory Protection requirements in
Sec. 1910.504 because the former section is now removed. The Mini
Respiratory Protection Program section is retained, however, because it
remains a requirement for respirator use under Sec. 1910.502(f)(4).
Similarly, OSHA has revised the incorporation-by-reference list in
Sec. 1910.509 by removing the reference to Sec. 1910.501(h) from
Sec. 1910.509(b)(5), as the incorporation by reference list now
pertains only to documents incorporated by reference in Sec. 1910.502.
Because these minor revisions do not make any substantive change to
the duties of employers, OSHA finds good cause that the opportunity for
public comment on these revisions is unnecessary within the meaning of
5 U.S.C. 553(b)(B) and 29 U.S.C. 655(b). In addition, OSHA finds that
public comment is impracticable in light of the need to provide clarity
to the regulated community and to workers.
III. State Plans
The occupational safety and health programs run by the 28 States
and U.S. territories with their own OSHA-approved occupational safety
and health plans (State Plans) must be at least as effective as Federal
OSHA's program. This includes a requirement that, when Federal OSHA
makes a program change that renders its program more effective, the
State Plan must timely adopt a corresponding change in order to
maintain a safety and health program that is at least as effective as
Federal OSHA (29 CFR 1902.32(e); 29 CFR 1902.44(a)). However, where, as
here, the Federal program change does not impose any new requirements
or otherwise render the Federal program more effective, State Plans are
not required to take any action.
List of Subjects in 29 CFR Part 1910
COVID-19, Disease, Health facilities, Health, Healthcare,
Incorporation by reference, Occupational health and safety, Public
health, Reporting and recordkeeping requirements, Respirators, SARS-
CoV-2, Vaccines, Viruses.
Authority and Signature
Douglas L. Parker, Assistant Secretary of Labor for Occupational
Safety and Health, U.S. Department of Labor, 200 Constitution Avenue
NW, Washington, DC 20210, authorized the preparation of this document
pursuant to the following authorities: Sections 4, 6, and 8 of the
Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657);
Secretary of Labor's Order 8-2020 (85 FR 58393 (Sept. 18, 2020)); 29
CFR part 1911; and 5 U.S.C. 553.
Signed at Washington, DC, on January 21, 2022.
Douglas L. Parker,
Assistant Secretary of Labor for Occupational Safety and Health.
For the reasons set forth in the preamble, part 1910 of title 29 of
the Code of Federal Regulations is amended as follows:
PART 1910--OCCUPATIONAL SAFETY AND HEALTH STANDARDS
1. The authority citation for subpart U continues to read as follows:
Authority: 29 U.S.C. 653, 655, and 657; Secretary of Labor's
Order No. 8-2020 (85 FR 58393); 29 CFR part 1911; and 5 U.S.C. 553.
Sec. 1910.501 [Removed and Reserved]
2. Remove and reserve Sec. 1910.501
3. Amend Sec. 1910.504 by revising paragraph (a) to read as follows:
Sec. 1910.504 Mini Respiratory Protection Program.
(a) Scope and application. This section applies only to respirator
use in accordance with Sec. 1910.502(f)(4).
* * * * *
4. Amend Sec. 1910.509 by revising paragraph (b)(5) to read as
Sec. 1910.509 Incorporation by reference.
* * * * *
(b) * * *
(5) Isolation Guidance. COVID-19: Isolation If You Are Sick;
Separate yourself from others if you have COVID-19, updated February
18, 2021, IBR approved for Sec. 1910.502(l).
* * * * *
[FR Doc. 2022-01532 Filed 1-25-22; 8:45 am]
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