In last month’s Top Tip, we noted that, even though the Vax-or-Test Emergency Temporary Standard is no more, the federal Occupational Safety and Health Administration can still hold employers liable for failing to protect workers from COVID-19 under existing safety standards. And now we remind you that state OSH agencies may also get involved, as the State of Washington’s Department of Labor & Industries (WDL&I) demonstrated this month when it imposed more than $285,000 in fines in connection with a COVID-19 outbreak at a multi-employer warehouse.
Continue Reading TOP TIP: Employers – State Safety and Health Departments Can Find COVID Violations Too!

Although COVID-19 is still very much present, we see improvement in the COVID-19 numbers, and the Centers for Disease Control and Prevention (CDC) has now significantly eased their mask recommendations– although not entirely. Employers may wish to review their workplace masking requirements and other COVID-19 protocols in light of the new guidance, as well as the diminishing restrictions at the state and local level.
Continue Reading What the CDC’s Latest Mask Guidance Means for Employers

On January 25, 2022, the Occupational Safety and Health Administration announced that it was withdrawing its beleaguered Emergency Temporary Standard that required employers with 100+ employees to mandate employees to be vaccinated or subject to weekly COVID-19 testing. With this action, the vax-or-test mandate is no more – for now. However, healthcare employers should be aware that, in addition to the Center for Medicare and Medicaid Services’ vaccine mandate that was recently allowed to take effect by the Supreme Court, they will soon be subject to a permanent standard replacing the healthcare ETS that OSHA previously withdrew in December 2021. 
Continue Reading OSHA Withdraws Vax-or-Test ETS, Plans to Issue Permanent Healthcare Standard

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

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.

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.

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

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?!!

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

A day after President Biden announced his COVID-19 Action Plan (which we discussed here), leaders from the Occupational Safety and Health Administration held a short briefing to discuss its forthcoming Emergency Temporary Standard that will require employers with 100+ employees to (1) mandate vaccinations or weekly testing, and (2) provide paid vaccination leave. The President’s announcement regarding these requirements was sorely lacking in details, but the OSHA briefing provided a few (not many) useful tidbits for nervously wondering employers.  (Be aware, however, that the ETS is not yet written, and it is possible that some of what they said today might not end up being accurate….)
Continue Reading A Few More Answers from OSHA on the Impending Vaccination ETS…