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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which was promulgated by the Occupational Safety and Health Administration (“OSHA”) on June 21, 2021, has been largely withdrawn by OSHA.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.
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Continue Reading OSHA Scraps Its Healthcare ETS While CMS Moves Forward With the Vaccine Mandate in Half of the Country

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.
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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.
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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.”
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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

Is it in effect or not? Do employers have to comply or not? Yes, everyone is confused. So here’s a quick overview of the very messy situation.

As you all undoubtedly know by now, on November 4, 2021, the Occupational Safety and Health Administration issued the promised/threatened Emergency Temporary Standard compelling employers with 100+ employees to require employees to be either (1) vaccinated or (2) subject to weekly testing and face covering mandates. (We wrote about the ETS in detail here).  The ETS took effect on November 5, although it set a December 6, 2021 compliance deadline for everything but the testing requirement, which has a January 4, 2022 deadline.
Continue Reading Wait – What Is Going On With the Vax-or-Test ETS?!!

On November 5, 2021, on the same day that the Occupational Health and Safety Administration issued its COVID-19 Vaccination and Testing Emergency Temporary Standard (the “ETS”), the Centers for Medicare and Medicaid Services (“CMS”) released its Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule (the “CMS Vaccination Rule” or the “Rule”).  The CMS Vaccination Rule requires certain healthcare providers to mandate vaccination against COVID-19 for all applicable staff.  The Rule, which permits medical and religious exemptions only as required by law, does not require testing of unvaccinated staff.
Continue Reading CMS Issues COVID-19 Rule Requiring Vaccination of Healthcare Staff

The federal Occupational Safety and Health Administration has now issued the Emergency Temporary Standard (ETS) implementing President Biden’s September 9, 2021 COVID-19 Action Plan that requires 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. Although the ETS is effective upon publication in the Federal Register on November 5, 2021, employers will be given until December 5, 2021 to come into compliance with everything but the testing requirement, which has a compliance date of January 4, 2022. The ETS will likely be in effect for six months.
Continue Reading OSHA’s Vax-or-Test ETS: What Employers Need to Know

The White House and the Task Force have softened the December 8, 2021 vaccination compliance deadline for federal contractors and subcontractors. (Big sigh of relief). And provided a little more guidance on employees with exemptions at federal worksites.
Continue Reading Hey Federal Contractors – There’s Flexibility on that Vaccination Deadline (And Some More Info About Exemptions)