[Federal Register Volume 87, Number 17 (Wednesday, January 26, 2022)]
[Rules and Regulations]
[Pages 3928-3929]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-01532]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1910

[Docket No. OSHA-2020-0007]
RIN 1218-AD42


COVID-19 Vaccination and Testing; Emergency Temporary Standard

AGENCY: Occupational Safety and Health Administration (OSHA), Labor.

ACTION: Interim final rule; withdrawal.

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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 [email protected].

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 protected].
    For technical inquiries: Contact Andrew Levinson, Directorate of 
Standards and Guidance, U.S. Department of Labor; telephone (202) 693-
1950.

SUPPLEMENTARY INFORMATION:

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), 
(3).
    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

[[Page 3929]]

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

Subpart U--COVID-19

0
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]

0
2. Remove and reserve Sec.  1910.501

0
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).
* * * * *

0
4. Amend Sec.  1910.509 by revising paragraph (b)(5) to read as 
follows:


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]
BILLING CODE 4510-26-P