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Withdraw Covid-19 Shot-or-Test Rule, Attorneys General Tell OSHA

Jan. 19, 2022, 10:45 PM

The Republican state attorneys general who convinced the U.S. Supreme Court to prevent enforcement of the Occupational Safety and Health Administration’s shot-or-test Covid-19 standard are asking the agency to withdraw the regulation.

“OSHA lacks authority to require that tens of millions of employees vaccinate against an endemic virus that presents a generic risk, not a workplace risk,” the Jan. 19 letter from 27 state attorneys general said. “OSHA should, therefore, immediately withdraw the ETS and suspend its efforts to promulgate a similar permanent standard.”

OSHA didn’t immediately respond to a request for comment on the letter.

The temporary standard, which the high court sent back to a federal appeals court, requires unvaccinated workers to pass a weekly Covid-19 test and wear a face mask while indoors. Workers who are fully vaccinated don’t need to be tested. Employers are expected to enforce the testing-or-vaccinated mandate and could be cited by OSHA for failing to do so.

The Occupational Safety and Health Act limits emergency temporary standards to six months, handing the mandate a May 5 expiration date. OSHA is working on a permanent version of the standard and accepted comments on the requirements through Wednesday.

The letter repeats many of the same arguments the states presented that led to the high court’s 6-3 decision Jan. 13 to stop OSHA enforcing the standard while the U.S. Court of Appeals for the Sixth Circuit considers the rule’s legality.

It claimed OSHA “overstepped its authority by coercing employees to undergo vaccination through an unprecedented use of the [Occupational Safety and Health] Act.”

The weekly testing option is “simply designed as a coercive tool aimed at imposing massive costs on both employers and employees to force vaccination,” the attorneys general wrote.

Since the Supreme Court’s ruling, neither OSHA nor the dozens of states, businesses, and organizations opposing the standard have filed new motions or requests with the Sixth Circuit. No hearing dates are set.

Robert Iafolla contributed to this story.

To contact the reporter on this story: Bruce Rolfsen in Washington at BRolfsen@bloomberglaw.com

To contact the editor responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com, Melissa B. Robinson at mrobinson@bloomberglaw.com

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