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…

Trying to stay on top of federal workplace guidance on COVID-19 is confusing and challenging for employers, and the Occupational Safety and Health Administration (OSHA) has just changed the playing field again – although the new guidance is intended to conform with the Center for Disease Control and Prevention’s (CDC) recently-revised recommendations for fully-vaccinated individuals (as discussed in our August 4, 2021 blog post).

Continue Reading Again? What Employers Need to Know About OSHA’s Latest Update to Its COVID-19 Workplace Guidance

As we discussed in our May 14, 2021 blog post, “Back to Normal for the Fully Vaccinated? What the CDC’s Latest Guidance Means for Employers,” the CDC had previously stated that fully-vaccinated individuals could essentially resume their pre-pandemic, maskless lifestyles, subject to applicable state or local mandates. But the CDC also stated that those individuals were still required to comply with workplace requirements. Given the rapid spread of COVID-19’s Delta variant and the increase in cases, particularly in areas of low vaccination rates, the CDC has now revised its guidance. So what does this mean for employers?

Continue Reading Masks Redux? What Employers Need to Know About the Latest Guidance for Fully Vaccinated Individuals from the CDC

As healthcare employers should know, the Occupational Safety and Health Administration released a COVID-19 Emergency Temporary Standard (ETS) (extensively discussed in our June 15, 2021 blog post), which became effective on June 21, 2021 . The ETS imposes significant responsibilities and obligations on those employers in the context of the COVID-19 pandemic, and it also teased that OSHA was providing significant resources (including a model plan) to assist with compliance, although most of those resources were nowhere to be found on the OSHA website – until now!

Continue Reading Healthcare Employers Rejoice! OSHA Provides New Compliance Resources (Model Plan!) for Its COVID-19 Emergency Temporary Standard

In conjunction with updating its COVID-19 guidance for employers generally (discussed in a prior E-lert), on June 10, 2021, the federal Occupational Safety and Health Administration (OSHA) issued a long-awaited COVID-19 Emergency Temporary Standard (ETS) – but limited its coverage only to employers providing healthcare services or healthcare support services. The ETS imposes significant responsibilities and obligations on those employers in the context of the COVID-19 pandemic – much of which healthcare entities are already doing. But there are a few surprises as well.

Continue Reading OSHA’s COVID-19 Emergency Temporary Standard for Healthcare Employers Contains Some (Unpleasant) Surprises

On June 10, 2021, the federal Occupational Safety and Health Administration issued updated guidance for businesses on COVID-19 prevention and mitigation – taking into account the impact of vaccinations – along with a long-awaited Emergency Temporary Standard (ETS) applicable only to healthcare (which is not discussed in this E-lert).

Continue Reading OSHA’s COVID-19 Updated Workplace Guidance – What Employers Need to Know

Just over two weeks after it relaxed its protocols for fully-vaccinated individuals, the Centers for Disease Control and Prevention (CDC) has now issued revised guidance essentially permitting those individuals to resume their pre-pandemic lifestyle, subject to any applicable and differing state and local mandates. Consistent with prior iterations of this guidance, the CDC asserts that “You will still need to follow guidance at your workplace.” So what can employers do now? Well, we’ve now updated our last blog post on this topic (and then further updated to account for OSHA’s latest pronouncement).

Continue Reading UPDATED: Back to Normal for the Fully Vaccinated? What the CDC’s Latest Guidance Means for Employers