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OSHA Formally Withdraws COVID-19 Vaccination and Testing ETS

On the heels of the US Supreme Court’s recent ruling blocking enforcement of its COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS), OSHA issued a statement formally withdrawing the ETS as an enforceable temporary standard effective January 26, 2022. OSHA stated that it will continue to pursue the ETS as a proposed rule and focus on finalizing a permanent COVID-19 Healthcare Standard. OSHA continues to encourage COVID-19 vaccination of workers to minimize workplace health risks posed by the virus.

For a complete discussion and history of this issue, please see Lake Effect’s prior blogs on the ETS and the Supreme Court's recent decision.

Lake Effect is here to answer your questions about COVID-19 compliance and will continue to monitor important legal and HR developments, as well as COVID-related updates from federal, state, and local authorities. Please watch our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.

COVID-19 Resources / Legal - 01/25/2022

Supreme Court Decision on Vaccine Mandate

Supreme Court: OSHA Exceeded Its Authority by Requiring Large Employers to Adopt Mandatory Vaccination Policies, But Healthcare Providers Can Require Employee Vaccinations

On January, 13, 2022, The US Supreme Court issued its much anticipated decision on two Biden Administration initiatives aimed at increasing COVID-19 vaccination rates across the nation: (1) OSHA’s Emergency Temporary Standard, which requires large employers (100+ employees) to adopt mandatory vaccination policies; and (2) the Center for Medicare and Medicaid Services’ (CMS’) Interim Final Rule, which requires certified healthcare entities to mandate employee vaccinations. For a detailed discussion of OSHA’s ETS for large employees, please see Lake Effect's prior blog on this topic.

As to the first, the Supreme Court reinstated a nationwide stay of OSHA’s ETS, finding that parties challenging OSHA’s vaccine mandate will likely prevail on the merits of the case. The Supreme Court explained that OSHA is tasked with regulating workplace health and safety. However, allowing OSHA to regulate the hazards of Americans’ daily lives would significantly expand its regulatory authority in a manner not authorized or intended by Congress. Under the Supreme Court’s ruling, the case will be sent back to the Sixth Circuit for a final decision on the merits, and OSHA cannot enforce the ETS in the interim. Given the Supreme Court’s decision, however, it is highly unlikely that the Sixth Circuit will uphold the ETS.

As to the second initiative, the Supreme Court upheld CMS’ ability to enforce its vaccination mandate for certified health care providers. The Court found that the US Secretary of Health and Human Services is authorized to impose detailed conditions on the receipt of Medicare and Medicaid funds, and those conditions are often aimed at preventing and controlling the transmission of communicable diseases. The Court concluded that requiring healthcare providers to mandate employee vaccinations as one such condition is well within the authority of CMS.

What Should Employers Do Now?
At this time, large employers need not implement OSHA’s detailed vaccination and testing requirements, and it is highly unlikely that the ETS will be upheld at all. However, employers of any size may lawfully implement their own vaccination and testing policies, as long as accommodations for eligible employees are granted in accordance with Title VII (religion) and the ADA (disability).

CMS can enforce its Interim Rule as to covered healthcare provider employers nationwide. Although further litigation on the Rule is likely, covered healthcare providers should prepare to meet upcoming compliance deadlines in January and February 2022.

Lake Effect is here to answer your questions about federal, state, and local regulations that impact employers across all industries. We continue to monitor important legal and HR developments, as well as COVID-related updates from federal, state, and local authorities. Please watch our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.

COVID-19 Resources / Legal - 01/14/2022

Update on OSHA’s Vaccination and Testing Emergency Temporary Standard

On December 17, 2021, the U.S. Court of Appeals for the Sixth Circuit lifted the stay placed by the Fifth Circuit and cleared the way for OSHA’s Emergency Temporary Standard (ETS) to proceed. A coalition of trade groups quickly appealed the decision to the U.S. Supreme Court for final determination.

Almost immediately, OSHA updated its site as follows:

Litigation Update
OSHA is gratified the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of the Vaccination and Testing Emergency Temporary Standard. OSHA can now once again implement this vital workplace health standard, which will protect the health of workers by mitigating the spread of the unprecedented virus in the workplace.

To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance.

Per OSHA’s statement, employers will now have until January 10, 2022 to develop compliant policies and until February 9, 2022 to begin testing programs. Additionally, OSHA noted that no enforcement will start before January 10, 2022.

Lake Effect recommends that all covered employers (defined as those with at least 100 employees firm or corporate-wide at any time the ETS is in effect) proceed as if the ETS will be implemented, but recognize there may be further delays pending a decision from the U.S. Supreme Court. Please see Lake Effect’s prior blogs on OSHA’s ETS for more complete information about the provisions of the standard.

COVID-19 Resources / Legal - 12/20/2021

The Uncertain Fate of OSHA’s ETS Mandating Employer Vaccination Policies

What is the status of OSHA’s ETS? As Lake Effect previously reported, OSHA issued an Emergency Temporary Standard earlier this month requiring employers with 100 or more employees to implement mandatory vaccination or testing/masking policies. Read our prior blog for a full discussion of OSHA’s guidelines and requirements. In response to the ETS, employers across the country began to prepare policies in advance of the initial December deadlines.

Almost immediately, states, employers, and other groups across the country filed lawsuits challenging OSHA’s authority to issue the ETS. On November 5, 2021, a three-judge panel of the U.S. Court of Appeals for the 5^th Circuit temporarily halted the mandate. On November 12, 2021, the full 5^th Circuit Court of Appeals issued an order barring OSHA from implementing and enforcing the ETS pending further court proceedings. In response, OSHA announced that it had “suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.” In the latest legal development, the Judicial Panel of Multidistrict Litigation consolidated at least 34 lawsuits across the country challenging the ETS (including the 5^th Circuit case) before the 6^th Circuit Court of Appeals based in Cincinnati. A three-judge panel from the 6^th Circuit will be randomly assigned to hear all pending legal challenges to OSHA’s ETS.

What does this mean for employers? For now, OSHA will cease implementation and enforcement of the ETS, and prior December and January deadlines are no longer in effect pending further court action. However, this does not necessarily mean employers should delay or stop planning for vaccination policies. Keep in mind:

The Biden Administration and OSHA are confident in OSHA’s authority to issue workplace safety-related regulations, and they will vigorously defend the enforceability of the ETS.
Despite the 5^th Circuit’s initial stay, the 6^th Circuit could reject legal challenges and uphold OSHA’s authority to issue the ETS.
Regardless of the outcome of legal challenges to the ETS, employers of any size have the discretion to implement mandatory vaccination and/or testing/masking policies in their workplaces, as long as they comply with Title VII and ADA accommodation requirements.
Employers who are federal contractors or health care providers must comply with vaccination mandates under the Federal Contractor Mandate and CMS Medicate Omnibus Staff Vaccine Mandate Interim Final Rule. These mandates are unaffected by the current ETS litigation.

On A Related Note, You May Have Collective Bargaining Obligations. On November 10, 2021 (prior to consolidation of country-wide lawsuits challenging the ETS) the National Labor Relations Board (NLRB) Acting Associate General Counsel issued a memorandum outlining employers’ obligations to bargain with unions about issues related to the ETS. She confirmed that covered employers must bargain with unions about whether to implement a vaccine mandate or implement a vaccine and testing/masking policy. In addition, employers must bargain about the effects of the ETS policy on employees, including whether to provide leave to employees who test positive or how to discipline employees who refuse to comply with an ETS policy. Employers with represented employees should keep these obligations in mind as they consider and implement any vaccination policy.

Contact your partners at Lake Effect for help navigating vaccination issues in the workplace during this uncertain time. We will continue to closely monitor all legal developments relating to the ETS.

COVID-19 Resources / Legal - 11/17/2021

OSHA Issues COVID-19 Vaccination and Testing Emergency Temporary Standard

On November 4, 2021, OSHA issued its Emergency Temporary Standard (ETS) and a helpful FAQ detailing the federal mandatory vaccination and testing requirements for large employers across the country. The ETS is lengthy and detailed, but major highlights include the following:

Who: The mandatory vaccination and testing requirements apply to US employers with at least 100 employees firm or corporate-wide at any time the ETS is in effect (“covered employers”).
- The ETS does not apply to workplaces already covered by Federal Workforce Task Force Guidance or federal contractors and subcontractors already covered under Executive Order 14042.
- Even if their employer is covered, the ETS does not apply to employees who do not report to a workplace where other people are present, employees working from home, or employees who work exclusively outdoors.
When: The ETS is effective immediately upon its publication in the Federal Register on November 5, 2021. On or before December 5, 2021, employers must be in compliance with all ETS provisions (including requiring all unvaccinated employees to wear masks) other than weekly testing for employees who are not fully vaccinated. On or before January 4, 2022, employers must be in compliance with all ETS provisions, including requiring weekly testing for unvaccinated employees.
Key requirements: The ETS established minimum vaccination, vaccination verification, face covering, and testing requirements. Covered employers must do the following:
- Develop, implement, and enforce a mandatory COVID-19 vaccination policy (or a policy allowing alternative weekly COVID-19 testing and masking). Provide written information about the ETS and related policies to all employees.
- Determine the vaccination status of each employee, obtain acceptable proof of vaccination, maintain records of each employee’s vaccination status, and maintain a roster of each employee’s vaccination status.
- Provide employees reasonable time, including up to 4 hours of paid time, to receive vaccination doses, and reasonable time and paid sick leave to recover from possible side effects after each dose.
- Require employees to receive the necessary shots to be fully vaccinated -- either two doses of Pfizer or Moderna, or one dose of Johnson & Johnson – by January 4, 2022.
- In the alternative, ensure that each employee who is not fully vaccinated by January 4, 2022 is tested for COVID-19 at least weekly (if in the workplace at least once a week) or within 7 days before returning to work (if away from work for a week or more). Covered employers are not required to pay for such testing under the ETS, although they may be required to do so under other applicable laws or collective bargaining agreements. The ETS lists permissible tests upon which covered employers and employees may rely.
- Require employees to immediately provide notice if they receive a positive COVID-19 test or are diagnosed with COVID-19, and immediately remove such employees from the workplace, keeping them out until they meet criteria for returning to work.
- Require every employee who is not fully vaccinated to wear a face covering when indoors or in a vehicle with another person for work purposes.
- Report work-related COVID-19 fatalities to OSHA within 8 hours of learning about them and work-related in-patient hospitalizations within 24 hours of learning about them.

For additional information about complying with these new detailed ETS requirements, contact your partners at Lake Effect.

COVID-19 Resources / Human Resources / Legal - 11/05/2021

Updated OSHA Guidance to Continue Workplace Health and Safety Measures

On August 13, 2021, the Occupational Safety and Health Administration (OSHA) updated its guidance for all employers to reflect the CDC’s July 27, 2021 recommendations on masks and testing for fully-vaccinated individuals. As with the prior guidance on COVID-19, this updated OSHA guidance is not a standard or regulation and creates no new legal obligations. However, the guidance is likely to be relied on to measure employer compliance with OSHA’s “General Duty Clause.” That clause requires employers to provide a workplace free from recognized hazards that cause or are likely to cause death or serious harm.

To reduce the risk of spreading COVID-19 among employees, especially the Delta variant, OSHA recommends that employers:

Require all employees, including those who are fully vaccinated, to wear a face covering, or other appropriate PPE, when indoors with other people in areas of substantial or high transmission.
Encourage or require all customers, visitors, and guests to wear face coverings when indoors in areas of substantial or high transmission.
Adopt policies that require employees to get vaccinated or, if they remain unvaccinated, get regularly tested for COVID-19 plus continue wearing a face covering and physical distancing.
Require fully vaccinated employees who have been exposed to COVID-19 to be tested three to five days after exposure and wear a face mask when indoors for 14 days unless they test negative.

The above precautions are in addition to measures included in OSHA’s previous guidance. See Lake Effect’s blog on OSHA’s guidance for employers.

Employers should work closely with legal counsel and HR to implement an updated COVID-19 workplace program consistent with this new OSHA guidance and any applicable local guidance and orders. Lake Effect is here to help you through this process.

We continue to monitor important legal and HR developments, as well as COVID-related updates from federal, state, and local authorities. Please keep watching our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.

COVID-19 Resources / Legal - 08/18/2021

Long Awaited OSHA Guidance to Continue Workplace Health and Safety Measures

On June 10, 2021, the Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS) with a very narrow scope, focused on the healthcare industry. Fortunately, OSHA also updated its January 29, 2021 guidance for all employers to reflect the increasing prevalence of vaccinations and the lifting of mask orders around the country. (See our prior blog on the January guidance here.) This new guidance provides a helpful reminder for employers to remain steadfast in their many COVID-related health and safety efforts.

As with the January update, this new guidance is not a standard or regulation, and creates no new legal obligations. Nonetheless, it will likely be one yardstick used to measure compliance with OSHA’s “General Duty Clause,” which requires employers to provide workers with a workplace free from recognized hazards that cause or are likely to cause death or serious harm.

The new guidance specifies ways to protect unvaccinated and other at-risk employees, mitigate the spread of COVID, and encourage vaccinations, including the following:

Encourage employees to get vaccinated (See Lake Effect’s prior blog on this issue)
Provide employees with paid time off to get vaccinated (See Lake Effect’s prior blog on EPSL leaves for employees to receive or recover from COVID vaccinations)
Require unvaccinated employees (and visitors) who are exposed to or experiencing symptoms of COVID to stay home and seek treatment
Maintain workplace safety measures for unvaccinated and at-risk workers including physical distancing, physical barriers, reduced employee density in spaces, flexible or staggered work schedules, alternative meeting options, remote work, and the like
Provide proper masks to unvaccinated and at-risk workers when working indoors. OSHA noted that unvaccinated persons who are not otherwise at-risk do not need to wear a mask outdoors, unless otherwise required by federal, state, or local requirements
Educate and train employees on COVID preventive measures and practices
Encourage unvaccinated visitors, clients, and guests to wear masks when onsite
Maintain ventilation systems to minimize transmission and spread of COVID
Follow CDC cleaning and disinfection recommendations
Implement a process for employees to anonymously express concerns about COVID safety practices and ensure that they are not discriminated or retaliated against in any way
Record and report COVID infections and deaths consistent with applicable OSHA requirements (See Lake Effect’s blogs on this issue)

Employers should work closely with legal counsel to understand all requirements and implement a COVID-19 workplace prevention program consistent with this new OSHA guidance and any applicable local guidance and orders. Lake Effect is here to help you through this process and ensure that you are taking all possible steps to provide a workplace free from the recognized hazards created by the COVID.

COVID-19 Resources - 06/11/2021

OSHA Recommends Measures to Reduce Workplace Spread of COVID-19

Responding to a directive from the Biden administration, OSHA posted new guidance on January 29, 2021 to help non-healthcare employers identify COVID-19 risks and implement effective measures to minimize its spread in the workplace. The guidance is not a standard or regulation, and it creates no new legal obligations. It is advisory in nature, containing recommendations and detailed descriptions of existing safety and health regulations. However, it will likely be one yardstick used to measure compliance with OSHA’s “General Duty Clause,” which requires employers to provide workers with a workplace free from recognized hazards that cause or are likely to cause death or serious harm.

The new guidance specifies that implementing a workplace COVID-19 prevention program is the most effective way to reduce its spread at work. An effective program includes such elements as:

Assigning a workplace coordinator responsible for COVID-19 issues.
Identifying where and how employees might be exposed at work.
Identifying a combination of measures to limit the spread of COVID-19 at work including separating and sending home potentially infected employees, implementing physical distancing and barriers, requiring face coverings, improving ventilation, and using applicable PPE, as well as good hygiene and cleaning/disinfection practices.
Providing reasonable accommodations or modifications to workers at higher risk of severe illness.
Effectively communicating with employees about COVID-19 in a language they understand and providing them with guidance on screening and testing.
Educating and training employees on COVID-19 policies and procedures.
Minimizing the negative impact of quarantine and isolation on workers by allowing telework or work at alternative locations where possible.
Recording and reporting COVID-19 infections and deaths consistent with applicable OSHA requirements. See Lake Effect’s blogs on this issue.
Establishing a process for employees to anonymously express concerns about COVID-19 hazards and ensuring that they are not discriminated or retaliated against in any way.
Making COVID-19 vaccines available to employees and requiring all employees to follow preventive practices, regardless of whether they are vaccinated. See Lake Effect’s blog on this issue.

This is not an exhaustive list of OSHA’s new recommendations, and this new guidance contains detailed information about each aspect of an effective workplace COVID-19 prevention program. Employers should work closely with legal counsel to understand all requirements and implement a COVID-19 workplace prevention program consistent with this new OSHA guidance. Lake Effect is here to help you through this process and ensure that you are taking all possible steps to provide a workplace free from the recognized hazards created by the COVID-19.

COVID-19 Resources / Legal - 02/01/2021

Biden Administration Impact on the Workplace

Just one week into his administration, President Biden has signaled that he will take a fresh look at current issues affecting American workers and workplaces. His recent executive orders and memoranda include the following actions:

Halt Final Rules governing tip pools and independent contractors: This Executive memorandum stays pending final rules that have been published but which had not yet taken effect to allow the Biden Administration to review their impact. This also directs that any rules which had been sent to the Federal Register but had not yet been published must be immediately withdrawn for review. This results in a stay of the Independent Contract Final Rule and the new Tip Pooling Rule. As a result, the Department of Labor has withdrawn 3 opinion letters related to those rules. See Lake Effect’s previous blogs on the Independent Contractor Final Rule, the Tip Pooling Final Rule, and two of the tip pool opinion letters.
Expand COVID-related unemployment benefits: This Executive Order permits employees who refuse work based on COVID health-related concerns to receive unemployment benefits.
Promote racial equity: This Executive Order directs the Biden administration to conduct equity assessments of its agencies and reallocate resources to “advanc[e] equity for all, including people of color and others who have been historically underserved, marginalized and adversely affected by persistent poverty and inequality.”
Reaffirm gender equity: This Executive Order expands protections against discrimination based on sex in federal agencies to explicitly include sexual orientation, gender identity, and gender expression. This does not have a direct impact on private employers, but does follow the U.S. Supreme Court decision in Bostock v. Clayton County, Georgia (see Lake Effect’s blog here).
Enhance COVID-related workplace safety: This Executive Order requires administrative agencies to take “swift action to reduce the risk that workers may contract COVID-19 in the workplace.” This will most likely result in action from OSHA setting forth “science-based guidance to help keep workers safe from COVID-19 exposure, including with respect to mask-wearing; partnering with State and local governments to better protect public employees; enforcing worker health and safety requirements; and pushing for additional resources to help employers protect employees.”

The attorneys and HR professionals at Lake Effect will continue to closely monitor the Biden administration’s executive actions, legislative developments, and their impact on workplaces.

Human Resources / Legal - 01/27/2021

OSHA Issues Guidance on Reporting Work-Related COVID-19 Hospitalizations and Deaths

On September 30, 2020, OSHA published new guidance on employers’ obligations to report employee in-patient hospitalizations and fatalities resulting from work-related cases of COVID-19.

Employers must report hospitalizations with 24 hours: In order to be reportable, an employee’s in-patient hospitalization due to COVID-19 must occur within 24 hours of exposure to the virus at work. If the hospitalization occurs later, it is not reportable. Furthermore, an employer’s duty to report is triggered when the employer knows both that the employee has been hospitalized and that the reason for the hospitalization was COVID-19 exposure at work within 24 hours prior to hospitalization. Once the employer knows both, it has 24 hours to report the hospitalization.

Employers must report fatalities within 8 hours: In order to be reportable, a fatality caused by COVID-19 must occur within 30 days of exposure to the virus in the workplace. If the death occurs later, it is not reportable. Furthermore, an employer’s duty to report arises when the employer knows both that the employee has died of COVID-19 and that the cause of death was work-related exposure to the virus within the prior 30 days. Once the employer knows both, it has 8 hours to report the fatality.

Notably, the guidance does not specify how employers should decide whether or not a COVID-19 exposure was work-related for purposes of reporting hospitalizations or fatalities. Therefore, employers are left to follow prior OSHA guidance issued in May 2020 as to “whether it is more likely than not that exposure in the workplace played a causal role with respect to a particular case” of COVID-19.

An employer may report a work-related COVID-19 hospitalization or death in any of the following ways:

Calling the nearest OSHA office
Calling the OSHA 24-hour hotline at 1-800-321-OSHA (6742); or
Reporting online.

OSHA-covered employers must record all work-related confirmed cases of COVID-19. See Lake Effect’s prior blog on this topic.

Lake Effect is here to answer your questions about OSHA reporting obligations relating to COVID-19. For a deeper dive into this issue, contact us at info@le-hrlaw.com or 1-844-333-5253. We continue to monitor important legal and HR developments, as well as COVID-related updates, from federal, state, and local authorities. Please keep watching our blogs and emails for the latest information.

Lake Effect is committed to helping your organization maximize its workplace potential, ensuring compliance while preserving your unique culture.

COVID-19 Resources - 10/22/2020

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