As predicted by most legal observers, a split U.S. Supreme Court has stayed the Occupational Safety and Health Administration’s Emergency Temporary Standard (ETS) requiring employers with 100+ employees to mandate vaccinations or weekly testing/face coverings for their workforce. However, it has lifted the partial stay of the Center for Medicare and Medicaid Services’ (CMS) Interim Final Rule mandating vaccination of workers of most Medicare- and Medicaid-certified healthcare entities. Continue Reading Supreme Court Stays Vax-or-Test ETS But Allows CMS Vaccine Mandate – What Employers Need to Know

As predicted by most legal observers, a split U.S. Supreme Court has stayed the Occupational Safety and Health Administration’s Emergency Temporary Standard (ETS) requiring employers with 100+ employees to mandate vaccinations or weekly testing/face coverings for their workforce. However, it has lifted the partial stay of the Center for Medicare and Medicaid Services’ (CMS) Interim Final Rule mandating vaccination of workers of most Medicare- and Medicaid-certified healthcare entities. Continue Reading Supreme Court Stays Vax-or-Test ETS But Allows CMS Vaccine Mandate – What Employers Need to Know

Throughout the pandemic, the guidance from the Centers for Disease Control and Prevention has been constantly evolving to reflect changing circumstances. The latest development is a reduction in quarantine and isolation periods under certain circumstances, which will allow employers to bring employees back to work sooner than before and make other adjustments to their COVID protocols. Continue Reading What the CDC’s Updated Isolation/Quarantine Guidance Means for Employers

OSHA Withdraws the Healthcare ETS. The Healthcare ETS, which was promulgated by the Occupational Safety and Health Administration (“OSHA”) on June 21, 2021, has been largely withdrawn by OSHA.  On December 27, 2021, OSHA announced its withdrawal of the non-recordkeeping components of the Healthcare ETS.  We previously described the requirements of the Healthcare ETS in our June 15, 2021 E-lert.

The Occupational Safety and Health Act envisions that emergency temporary standards expire if a permanent standard is not promulgated within six months after the promulgation of the emergency temporary standard.  The six-month timeframe for promulgating a permanent standard passed on December 21, 2021.  OSHA explained its rationale for the withdrawal as its failure to timely adopt a permanent standard for healthcare workers, but the announcement also made clear that OSHA will continue to work toward a permanent standard.

In the meantime, OSHA “strongly encouraged” healthcare employers to continue to abide by the terms of the Healthcare ETS, suggesting that failure to do so could be construed as violations of the generally duty clause and other general standards.  In fact, the announcement states that “OSHA will accept compliance with the terms of the Healthcare ETS as satisfying employers’ related obligations under the general duty clause, respiratory protection, and PPE standards.”  This portion of the announcement was inconsistent with language OSHA used in promulgating the Healthcare ETS finding the general duty clause insufficient to protect healthcare workers from grave danger.

It is not yet clear how this announcement impacts the scope of the Vaccination and Testing ETS.  In promulgating the Vaccination and Testing ETS, OSHA carved out from its coverage the workplaces covered by the Healthcare ETS describing one of its reasons for doing so as a higher propensity of healthcare workers to be vaccinated against COVID-19.  Now that the Healthcare ETS has been withdrawn, it is unclear from the language of the Vaccination and Testing ETS whether it will now apply to workplaces previously covered by the Healthcare ETS.  OSHA has not yet commented on this coverage question.

Employers in states with OSHA-approved state plans should consult their state resources.  Maryland, which maintains an OSHA-approved state plan, meaning its regulations must be “at least as effective” as OSHA standards, adopted the Healthcare ETS effective through January 30, 2022. Maryland Occupational Safety and Health (“MOSH”) has not yet commented on whether it will continue to enforce the OSHA Healthcare ETS through January 30, 2022, but the MOSH website links directly to the OSHA website containing the withdrawal notice.

CMS Will Enforce its Vaccination Rule in Half of the Country. On December 28, 2021, CMS announced a change in its enforcement position regarding its COVID-19 Healthcare Staff Vaccination Interim Final Rule (the “Rule”).  We discussed the basic requirements of the Rule in our November 8, 2021 E-lert.  Multiple lawsuits had been filed to enjoin CMS from enforcing the Rule, one of which resulted in a nationwide injunction prohibiting enforcement of the Rule.  The nationwide injunction was subsequently limited by a federal appeals court, leaving injunctions in place in only twenty-five states: Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia, and Wyoming.

CMS had previously, following the issuance of the injunctions, provided a litigation update indicating that it would not enforce the Rule at all while litigation was pending, stating that it would continue to assess the situation.  The continued assessment resulted in the change announced on December 28, 2021, that CMS will enforce the Rule in the twenty-five states, the District of Columbia, and territories in which it is not enjoined.  CMS also revised the deadlines for compliance with the Rule in the jurisdictions in which the Rule is not enjoined.  Covered employees must now receive the first dose of a vaccine by January 27, 2022, and they must complete the vaccine series by receiving a second dose by February 28, 2022.

As a reminder, both the CMS Interim Final Rule and the OSHA Vaccination and Testing ETS mentioned above are set for a special hearing with the Supreme Court on January 7, 2022.

In a decision that surprised many legal observers, the U.S. Court of Appeals for the Sixth Circuit has lifted the Fifth Circuit’s stay of the federal Occupational Safety and Health Administration’s Emergency Temporary Standard (ETS) requiring employers with 100+ employees (1) to mandate vaccinations or weekly testing/face coverings for their workforce and (2) to provide paid time off to get vaccinated and recover from any adverse effects. This means that larger employers must now come into compliance with the requirements of the ETS, unless the U.S. Supreme Court steps in with another stay. In the meantime, the federal contractor vaccination mandate is currently stayed, while the Center for Medicare and Medicaid Services’ vaccination mandate for the employees of Medicare- and Medicaid-certified providers is partially stayed – although both stays have been appealed by the Biden Administration.

Continue Reading OSHA’s Vax-or-Test Emergency Temporary Standard For Larger Employers Is Back in Business – For Now

A COVID-19 infection, in and of itself, is not necessarily a disability that triggers employee rights under the Americans with Disabilities Act – but there are circumstances when it can be, including for individuals experiencing long-term symptoms of COVID-19 (a condition with many names, such as “long COVID,” “post-COVID,” “long-haul COVID,” “post-acute COVID-19,” “long-term effects of COVID,” or “chronic COVID”). The EEOC has now updated its COVID-19 Guidance to provide clarification on this issue for employers.

Continue Reading When Is COVID-19 a Disability? The EEOC Speaks

Following one federal court’s stay limited only to certain states (as discussed in our November 2021 E-Update), another federal court in Louisiana has now granted a nationwide preliminary injunction against the Center for Medicare and Medicaid Services’ (CMS) Interim Final Rule containing a vaccine mandate issued on November 5, 2021 (as discussed in our November 8, 2021 E-lert). This mandate requires workers of most federally-funded healthcare entities to receive their first shot by December 6, 2021 and their second by January 4, 2022. The injunction states explicitly that it “immediately enjoins and restrains the Government…from implementing the mandate.”

Continue Reading Court Enjoins CMS’s Vaccine Mandate for Medicare and Medicaid-Certified Providers

In our occasional series of outrageous workplace conduct, the marked increase in remote work during the pandemic has created interesting opportunities for employees to engage in some poorly-considered multi-tasking. One that caught some media attention recently involved a Maryland state legislator who attended several legislative voting sessions remotely (that’s fine – everyone did), from an operating room (um… ok? Not really…), during an actual operation (yikes!), in which she was actually performing major surgery! (You can insert your own reaction here. Mine was NSFW). Continue Reading Extraordinary Workplace Misconduct: Multitasking … While Performing Surgery

On November 12, 2021, a three-judge panel of the Fifth Circuit extended the temporary stay it had previously placed on the OSHA vax-or-test Emergency Temporary Standard, pending further judicial review of a request (one of many) to permanently enjoin OSHA from enforcing the ETS.  Describing the ETS as a scheme under which employers would be “deputized to participate in OSHA’s regulatory scheme…by forcing unwilling employees to take their shots, take their tests, or hit the road[,]” the Court described a litany of statutory defects with the ETS and questioned its constitutionality.

While the details of the opinion make for interesting reading and provide a potential roadmap for a permanent injunction of the ETS, the question for employers remains the same: Should we still prepare for the ETS to be implemented?  The answer to that question is the same as it was yesterday (and as we further explained in our November 9, 2021 blog post): likely so.  Although the ETS is temporarily stayed, the temporary stay is precarious. Continue Reading Fifth Circuit’s Stay of OSHA’s Vax-or-Test ETS Remains in Place – For Now