OSHA withdraws rule for businesses after losing Supreme Court case

The Biden administration is formally withdrawing its vaccine and testing mandate for businesses, after the Supreme Court blocked the requirements earlier this month.

The Occupational Safety and Health Administration on Tuesday said it is pulling the rules for businesses effective Wednesday, Jan. 26. The Supreme Court’s conservative majority, in a 6-3 decision, said OSHA had exceeded its authority.

“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,” the court wrote in an unsigned opinion.

Under the defunct rules, businesses with 100 or more employees had to ensure their employees were fully vaccinated, or submitted a negative Covid test weekly to enter the workplace. It would have covered some 80 million private-sector employees.

The Supreme Court’s decision was a major blow to President Joe Biden’s strategy to control the spread of the virus. Biden has called on businesses to voluntarily implement the requirements.

Labor Secretary Marty Walsh has vowed that OSHA will use its existing powers to protect workers from Covid. OSHA still has general authority to investigate and fine employers if they fail to maintain a safe workplace.

The U.S. reported a seven-day average of more than 731,000 new daily infections, an increase of 4% over last week, according to a CNBC analysis of data from Johns Hopkins University. Though new infections are plateauing, they have stalled at significantly higher levels than past waves.

OSHA on Tuesday said it will shift resources to focus on creating a permanent Covid safety standard for health-care workers. The agency issued temporary rules for the industry last summer, but it pulled them in December after missing a deadline to create a permanent safety standard.

OSHA issued the health-care rules under its emergency authority, which allows the agency to shortcut the normal process and issue a new safety standard if the Labor secretary identifies a grave danger to workers. However, OSHA must develop a permanent regulation in six months to replace the temporary rules, which it failed to do.

The health-care Covid safety standard required most facilities to provide personal protective equipment, install physical barriers in certain areas, clean and disinfect the workplace, and maintain proper ventilation among a number of other measures.

The AFL-CIO and National Nurses United, among other labor groups, have asked a federal appeals court to force OSHA to reinstate the safety rules for health-care workers. OSHA, in a court filing, said it was unable to finish a permanent rule for health-care workers because its resources were tied up preparing the business mandate.

Hospitals around the U.S. are grappling with a surge of patients infected by the highly contagious omicron variant. There are about 155,000 patients in U.S. hospitals with Covid, according to a seven-day average of Dept. of Health and Human Services data, higher than peak levels seen last winter but down 2.4% from one week ago.

Many hospitals are facing staffing shortages as health-care professional are forced to call out sick after getting infected with the omicron variant.

“Many places across the country are getting to the point where even their backup staff are getting sick,” Dr. Gillian Schmitz, president of the American College of Emergency Physicians, told CNBC earlier this month. “Pretty much the whole country right now is feeling this surge of cases that is impacting staffing.”