Senate approves resolution to repeal OSHA’s COVID-19 ETS

Washington — The Senate on Dec. 8 passed a Congressional Review Act resolution in an attempt to repeal OSHA’s emergency temporary standard on COVID-19 vaccination, testing and masking.

The resolution, however, needs to pass in the Democrat-controlled House and be signed by President Joe Biden to take effect, or Congress would have to override a likely presidential veto.

The Congressional Review Act, included as part of the Small Business Regulatory Enforcement Fairness Act of 1996, allows lawmakers to repeal regulations within 60 legislative days, or days when Congress is in session.

Before 2017, the CRA was successfully invoked only once – to nix OSHA’s standard on ergonomics in 2001. It was used 16 times during the Trump administration and, as of July 1, has been used three times during the Biden administration. Six joint CRA resolutions have been vetoed by presidents, and another six resolutions have passed just one chamber of Congress.

This latest resolution was sponsored by Sen. Mike Braun (R-IN), but garnered support from Sens. Joe Manchin (D-WV) and Jon Tester (D-MT) in a 52-48 vote.

“I have always supported a vaccine mandate for federal employees and the military because maintaining the essential services and military readiness the federal government provides is a matter of national importance,” Manchin said in a statement. “However, I do not support any government vaccine mandate for private businesses. It is not the place of the federal government to tell private business owners how to protect their employees from COVID-19 and operate their businesses.

“We should incentivize, not penalize, private employers to encourage vaccination among their employees.”

At the moment, the ETS is in legal limbo after the 5th U.S. Circuit Court of Appeals issued a stay on Nov. 12. OSHA has suspended implementation and enforcement efforts, but is accepting comments on the ETS until Jan. 19.

The 6th Circuit, based in Cincinnati, will consider a consolidated challenge to the ETS in the near future. The court was chosen to decide on the fate of the ETS via a lottery, conducted by the Judicial Panel on Multidistrict Litigation on Nov. 16 after 27 petitions for review on the ETS had been filed in 12 appeals courts.

OSHA published the ETS in the Nov. 5 Federal Register, giving employers with 100-plus employees 30 days to develop, implement and enforce a mandatory COVID-19 vaccination policy – or provide a policy that gives workers the choice to get vaccinated or undergo weekly COVID-19 testing.

“We know the path forward to finally end this pandemic involves getting everyone vaccinated,” Sen. Patty Murray (D-WA), chair of the Health, Education, Labor and Pensions Committee, said in statement. “We should all be working toward that goal, not against it. After all we have lost and all the hard work we have done to rebuild, we must not throw our economy, our communities and American lives into jeopardy by sabotaging our pandemic response.

“When you are fighting a fire, you don’t just stop in the middle and turn off the water. But that’s exactly what this resolution would do. It would take away one of the most important tools we have given OSHA to protect workers, in the middle of a pandemic when we need it most.”

Covered employees had an initial deadline of Jan. 4 to become fully vaccinated, or begin weekly testing and wear a face covering while indoors or in a vehicle “with another person for work purposes.”