The federal court that issued a nationwide injunction of Executive Order (EO) 14042, “Ensuring Adequate COVID Safety Protocols for Federal Contractors,” has issued a new Order stating that it enjoined only the vaccine requirement of the EO’s implementing tool: the Safer Federal Taskforce (Safer Taskforce) Guidance. As a result of this Order, federal contractors covered by the EO should dust off their compliance plans to meet the many non-vaccine requirements of the Safer Taskforce Guidance, though action by other federal courts considering preliminary injunctions of the EO may put all of the requirements back on hold.

Read our alert on the current status of EO 14042 and the requirements for federal contractors.

 

The list of laws and regulations governing vaccinations and testing is growing and changing at a frenetic pace. Employers can add U.S. Department of Labor (DOL) guidance on the compensability of time spent undergoing testing and vaccinations to that list. Read more about the status of DOL guidance.

The Occupational Safety and Health Administration (OSHA) has withdrawn its enforcement of the Emergency Temporary Standard (ETS) requiring most employers to mandate COVID-19 vaccines or tests for employees.

OSHA’s announcement follows the U.S. Supreme Court’s ruling to grant a temporary stay of the ETS. This move most likely renders litigation in the U.S. Court of Appeals for the Sixth Circuit deciding the merits of the ETS moot.

Although it withdrew its enforcement of the ETS, OSHA left its provisions in place to serve as a notice of proposed rulemaking for a permanent rule under the rulemaking process pursuant to the Administrative Procedures Act.

In December 2021, OSHA withdrew its healthcare emergency temporary standard issued in June 2021 for healthcare employers, but the agency since has pledged to promulgate a permanent COVID-19 standard for healthcare employers in about six to nine months. The agency could potentially use both withdrawn emergency temporary standards to issue a single rule for COVID-19 applicable to healthcare and other industries in which COVID-19 may be considered an occupational hazard.

In the absence of OSHA standards governing COVID-19, employers not covered by another federal, state, or local mandate may choose to implement policies and practices best-suited to the unique needs of their workplace, keeping in mind that OSHA State Plan states may elect to promulgate standards of their own. In addition, OSHA is continuing enforcement of longstanding standards governing respiratory protection, personal protective equipment and sanitization. It also is continuing enforcement of the General Duty Clause to address recognized hazards, including workplace response to COVID-19.

In all cases, employers should communicate clearly with their employees about any change in their policies and practices, continue to monitor all circumstances, and make additional changes as necessary. Employers that choose to maintain workplace vaccination policies must still follow other applicable laws (such as Title VII and the Americans with Disabilities Act) and be cognizant of state and local requirements, including the laws in states like Alabama, Arkansas, Florida, Iowa, Kansas, Montana, North Dakota, Tennessee, Texas, Utah, and West Virginia, that impact employer vaccination policies.

If you have questions or need assistance on the OSHA ETS, please reach out to the Jackson Lewis attorney with whom you regularly work, or any member of our Workplace Safety and Health Practice Group or our OSHA ETS Team.

In fulfillment of President Biden’s promise to make at-home COVID tests more available for all of us, two significant action steps have now occurred:

  1. Every U.S. household has access to free at-home COVID-19 tests. As of January 18, 2022, any individual with a residence in the United States may request up to four (4) at-home COVID test kits.  There is no cost to register or for the kits themselves.
  1. At-home COVID-19 testing is available at no cost without a prescription under an employer’s group health plan. On January 10, 2022, the Department of Labor (DOL) released updated guidance and an FAQ that, as of January 15, 2022, now extends an employer’s obligation to cover all types of COVID-19 tests, between those performed or prescribed by a physician or other health care provider,  and for in-home COVID-19 tests provided without a doctor’s order.

Read more about these developments.

D.C.’s new “COVID Vaccination Leave Temporary Amendment Act of 2021” (Temporary Act) will extend employees’ entitlement to paid time off for both COVID-19 vaccination and recovery from any side effects well into 2022. Read more about about employer obligations here.

In a 5-4 decision, the U.S. Supreme Court has ruled in favor of the government, allowing the Centers for Medicare and Medicaid Services (CMS) COVID-19 vaccine mandate to continue. Biden, et al. v. Missouri, et al., No. 21A240; and Becerra, et al. v. Louisiana, et al., No. 21A240 (Jan. 13, 2022).

Accordingly, CMS can enforce in all states and U.S. territories its interim final rule requiring many Medicare and Medicaid providers to ensure their covered staff are vaccinated against COVID-19.

Read our full article here.

In a 6-3 ruling, the U.S. Supreme Court has granted a temporary stay of the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS).

The Court described the standard as a “blunt instrument” demanding most employers to require two-thirds of the American workforce to receive COVID-19 vaccinations or otherwise undergo weekly testing. The justices tipped their hands in the January 13 decision on how they might ultimately rule on the merits, stating that petitioners challenging the standard are likely to succeed in their arguments that OSHA exceeded its authority in promulgating the standard. Read more here>

Have any employees in Connecticut? Then you are covered by the Connecticut Family and Medical Leave Act (Connecticut FMLA).

All employers with at least one employee in Connecticut are covered by the Connecticut FMLA as of January 1, 2022.

Read more about Connecticut FMLA obligations for employers with any employees in Connecticut and other leave obligations in Connecticut.

The California Employment Development Department (EDD) has released the Voluntary Plan Employee Contribution and Benefit Rates for 2022. The EDD also released an updated Overview of California’s Paid Family Leave Program.  Read more here.

The U.S. Supreme Court heard oral arguments today in the OSHA ETS case.  Of course one never knows how the Court will rule, but if the Justices’ questions are any indication, there could be a 6-3 split in favor of a stay, with Chief Justice Roberts, Justice Thomas, Justice Alito, Justice Gorsuch, Justice Kavanaugh, and Justice Barrett voting in favor and Justice Breyer, Justice Kagan, and Justice Sotomayor dissenting.

All parties made very short opening remarks and then invited the Justices’ questions.  The common theme on which Justice after Justice questioned the parties was not whether vaccinations are helpful in the fight against COVID-19 or whether mandates are lawful generally, but who gets to decide these public health questions?  Much of the questioning and arguments focused on the major question doctrine, what factors determine when to invoke that doctrine, and whether Congress specifically delegated authority to OSHA to legislate the ETS at issue.  As the petitioners challenging the ETS argued, the OSHA ETS is a wide-sweeping workplace rule, not tailored to any particular industry and issued without consideration of specific levels of risk in different work environments.  They argued that the extraordinary power of an emergency rule requires that the rule have more precision, based on an industry-by-industry analysis.  The Solicitor General argued that Congress lawfully delegated the authority to OSHA to issue the ETS when it enacted the Occupational Safety and Health Act of 1970 (the “OSH Act”), the ETS is necessary to protect unvaccinated workers from grave danger due to COVID-19, and that given the ongoing pandemic OSHA considered and properly balanced the various competing interests.  The current surge in COVID-19 cases created a backdrop against which the Solicitor General and several of the Justices expressed concern over issuing a stay.

During the arguments, Chief Justice Roberts questioned the Solicitor General on whether the government was “working across the waterfront” with multiple federal agencies and executive branch actions to legislate #covid19 workplace rules—noting the Center of Medicare and Medicaid Services (CMS) and federal contractor executive order vaccine mandates—without giving Congress a say or acknowledging states’ police powers.  He also expressed doubt that Congress envisioned OSHA having this much power or anticipated the likes of a COVID-19 pandemic when granting OSHA authority under the OSH Act more than 50 years ago.

Justice Alito suggested that with the ETS, the government was trying to “squeeze an elephant through a mousehole,” questioned the Solicitor General about people’s personal medical decisions about vaccination, and questioned whether regular COVID-19 testing was even a viable option at this point.

Justice Breyer expressed concern about the growing number of daily cases, noting that yesterday the nation had around 750,000 new cases.  Petitioners argued however, citing Alabama Assoc. of Realtors, et al. v. HHS, 594 U.S. _____ (2021) (CDC eviction moratorium decided by the High Court August 26, 2021), that while combatting the spread of COVID-19 is a noble goal, no matter how well-intentioned, the ends cannot justify the means when those means are unlawful.

Whatever the outcome, it needs to come fast because employers need clarity.

If you have questions or need assistance on the OSHA ETS, please reach out to the Jackson Lewis attorney with whom you regularly work, or any member of our Workplace Safety and Health Practice Group or our OSHA ETS Team.