Brunini Law

OSHA Withdraws COVID ETS After U.S. Supreme Court Reinstates Stay

by

By John Milner

Published in “Marketers Update” of the Official Publication of Mississippi Petroleum Marketers and Convenience Store Association.  Spring Issue

As we have reported earlier, on January 13, 2022, the Supreme Court of the United States re-instated a nationwide stay of the Occupational Safety and Health Administration’s (“OSHA”) COVID-19 Vaccination and Testing Emergency Temporary Standard (“ETS”). The Court’s stay of OSHA’s ETS prevented OSHA from enforcing the standard, which officially went into effect on January 10, 2022.

In a per curiam (unanimous agreement) opinion, the Court held that emergency relief from the ETS is warranted because the applicants, including 27 states, are likely to prevail on their argument that OSHA’s ETS exceeds its statutory authority and is unlawful.  The Court reasoned that “[a]lthough Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly.”  The Court went on to state that “requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category.”  The Supreme Court’s stay remained in place pending further litigation and a ruling on the merits of the petitions for review in the United States Court of Appeals for the Sixth Circuit.

As a result of the Supreme Court’s ruling, on January 25, 2022, OSHA announced its withdrawal of the ETS effective as of January 26, 2022.  The OSHA announcement did specifically state that “[a]lthough OSHA is withdrawing the vaccination and testing ETS as an enforceable emergency temporary standard, the agency is not withdrawing the ETS as a proposed rule.  The agency is prioritizing its resources to focus on finalizing a permanent COVID-19 Healthcare Standard.”  This essentially means that OSHA may in the future still pursue some form of rule requiring employers to mandate vaccination or testing, but the process for any such rule will follow the ordinary rulemaking notice-and-comment process, rather than the expedited emergency process that OSHA utilized in implementing the now-withdrawn ETS.

In conclusion, at the present time, petroleum marketers that were to be covered by the ETS no longer need to plan for the possibility of its applicability or enforcement.  Of course, appropriate, reasonable COVID-19 workplace infection control and mitigation measures consistent with the “General Duty Clause in the OSHA Act need to be continues.  This provision requires that employers provide their employees with a working environment “free from recognized hazards that are causing or are likely to cause death or serious physical harm.”

If you have any questions concerning this article or need any additional information, please contact its author, John Milner, MPMCSA Counsel, at jmilner@brunini.com or (601)291-4696, or Philip Chamblee, MPMCSA Executive Director, at philip@mpmcsa.com or (601) 353-1624

Related Attorneys

Brunini Named Best Law Firm in Mississippi for Third Year in a Row

by

March 31, 2022 – For the third year in a row, Benchmark Litigation USA has named Brunini Law Firm as Mississippi Firm of the Year.  Patrick McDowell represented Brunini at the Annual Awards Program in New York City.   McDowell said, “It’s always rewarding to be recognized as the best of the best.  This award confirms our reputation as Mississippi’s go-to law firm for litigation.”

Benchmark Litigation USA recognizes the country’s most distinguished litigators and their firms for their exemplary work over the past twelve months based on extensive interviews with litigators, their clients, and an analysis of each state’s most important cases and firm developments.  Benchmark Litigation is the only rating service focused exclusively on litigation.

Benchmark has also recognized firm members William “Trey” Jones III, David Kaufman and Patrick McDowell as “Litigation Stars” for 2022 and Cody Bailey as a “Future Star.”

“This recognition confirms once again our commitment to provide high quality legal services to our clients,” said Sam Kelly, Managing Partner.  “We strive every day to represent our clients with excellence in a cost-effective manner.  While David, Trey, Patrick and Cody are often on the frontlines leading the way, we back them up with dedicated and experienced support.  We are humbled to have now received this important recognition for three years in a row. “

Brunini, Grantham, Grower & Hewes, PLLC, founded over 130 years ago, today is one of Mississippi’s most respected law firms.  They serve primarily business clients, including a number of Fortune 500 companies and other significant Mississippi companies, including the nation’s largest privately held wireless company, one of the world’s largest automobile manufacturers, one of Mississippi’s largest health insurers and one of the state’s largest banks and health care systems.

For more information contact: Elizabeth Tyler, etyler@brunini.com

Related Attorneys

Benchmark Litigation has once again named Brunini Law Firm to its annual shortlist for Mississippi Firm of the Year.

by

Jackson, MS, February 16, 2022 – Benchmark Litigation has once again named Brunini to its annual shortlist for Mississippi Firm of the Year.  The 2022 award winner will be announced at this year’s annual Benchmark Litigation USA Awards program on March 24.

The Benchmark Litigation USA Awards recognize the country’s most distinguished litigators and their firms for their exemplary work over the past twelve months based on extensive interviews with litigators, their clients, and an analysis of each state’s most important cases and firm developments.  Benchmark Litigation is the only rating service focused exclusively on litigation.

Brunini is proud to have been named Mississippi Firm of the Year each of the past two years, and four times in the past six years.  We very much appreciate this continued recognition as Mississippi’s go-to firm for serious litigation.

Benchmark has also recognized firm members William “Trey” Jones III, David Kaufman and Patrick McDowell as “Litigation Stars” for 2022 and Cody Bailey as a “Future Star.”  Here’s what Benchmark has to say about these “star” litigators:

“William Trey Jones III has a record of representing high-profile clients in litigation. Jones maintains a diverse litigation practice with experience handling commercial, environmental, labor and employment, and product liability matters. Jones represents clients in state and federal courts and is deeply experienced in appellate litigation as well.”

“David Kaufman practices in the areas of commercial, environmental, product liability and personal injury litigation. His experience as a dynamic trial lawyer also led him to represent clients in antitrust litigation as well.”

“Patrick McDowell is entrusted to handle cases at the appellate level, as well as federal and state trial courts. His practice also touches various areas, including commercial, intellectual property and environmental litigation. Kaufman and McDowell have represented national and local market-leading clients such as Blue Cross Blue Shield and Sanofi.”

“Cody Bailey has continued to emerge as a star litigator with a practice that focuses on complex business and commercial disputes, especially involving clients in the construction industry. His specialty handling construction litigation has included contract litigation, payment disputes, construction and design-defect cases and lawsuits involving permit claims.”

“We’re very appreciative that Benchmark has again recognized our firm and its litigators.  Recognition from Benchmark means so much because it’s based on favorable evaluations from our clients and even our competitors at other firms.  That’s high praise indeed,” said Patrick McDowell.

For more information contact: Elizabeth Tyler, Marketing – etyler@brunini.com

Related Attorneys

Mississippi Environmental Quality Permit Board

by

Summary of Meeting Held February 8, 2022

Prepared By Brunini, Grantham, Grower & Hewes, PLLC

The Mississippi Environmental Quality Permit Board (“Board”) convened at 9:00 a.m. on February 8, 2022.  This meeting was held through a telephone conference call and the public was invited to listen to the deliberations of the Board. The Board first approved minutes from the previous meeting held on January 11, 2022 and the non-controversial actions/certifications completed by the staff since the January meeting. Then, following a prepared agenda, the Board considered items as follows:

OFFICE OF GEOLOGY

Ron Porter (MDEQ Office of Geology, Mining and Reclamation) presented the MDEQ Staff’s recommendations and Board approved the following:

Surface Mining Bond Release

Permittee County Permit Staff Recommendation
Joe McGee Construction Company, Inc. Newton P10-022 Final 80%
Joe McGee Construction Company, Inc. Rankin P18-14 Initial 70%
Oddee Smith Construction, Inc. Lincoln P08-029 Additional 30%
Parker Sand & Gravel Lowndes P17-002 Initial 90%

 

James Matheny (MDEQ Office of Geology, Mining and Reclamation) presented the MDEQ Staff’s recommendations and Board approved the following:

 

Surface Coal Mining Bond Release

Permittee County Permit
Liberty Fuels Kemper MS-003

 

Other Business

Roy Furrh, MDEQ Chief Counsel, reminded the Permit Board members that they need to complete their annual compliance forms; statement of economic interest forms and EPA conflict forms.

Mr. Furrh noted that he has sent a copy of Gold Coast Commodities, Inc.’s revocation to the Board.

Next, Mr. Furrh informed the Board that the parties involved in the Jimmy Le d/b/a Le Poultry application have voluntarily dismissed the appeal and that Jimmy Le d/b/a Le Poultry has sold the property.

Finally, Mr. Furrh briefly discussed Senate Bill 2087 (Open meetings law for public bodies; require all official meetings to be broadcast via video livestream applications).  This Bill was introduced by Senator Boyd would affect the Board if it passes.

The next Permit Board meeting will be held on March 8, 2022, at 9 a.m.

This Newsletter is a publication of the Environmental Practice Group of the law firm of Brunini, Grantham, Grower & Hewes located in Jackson, Mississippi. This Newsletter is not designed or intended to provide legal or professional advice, as any such advice requires the consideration of the facts of the specific situation.

If you have any questions concerning the content of a newsletter, or if you would like further information about the matters addressed in a newsletter, please contact John Milner, the Brunini Firm Environmental Practice Group leader, at jmilner@brunini.com or (601) 960-6842.

Related Attorneys

Mississippi Enacts New Medical Marijuana Law

by

By:  Kyle Williams and Chris Fontan

After months of political maneuvering, including a state-wide ballot initiative and Supreme Court challenge, Mississippi has joined 36 other states in enacting its own medical marijuana program.  On February 2, 2022, Governor Tate Reeves signed Senate Bill 2095, the Mississippi Medical Cannabis Act, (the “Act”) into law. The Act regulates the cultivation, processing, and dispensing of medical cannabis and authorizes physicians, certified nurse practitioners, physician’s assistants, and optometrists to certify patients for cannabis use—up to three ounces per month—to treat numerous “debilitating medical conditions.”

The Mississippi Department of Health will administer the program outlined within the Act and will enact regulations governing medical cannabis cultivators, processors, transporters, medical practitioners, and testing and research facilities. The Act tasks the Department of Revenue with regulating and licensure of cannabis dispensaries.

As more Mississippians are issued “written certifications” to obtain and use medical cannabis, employers will be forced to navigate this emerging area of the law.  As written, the Act contains many provisions favorable for the state’s employers.  For example, the 445-page Act in no way prohibits or limits an employer’s ability to establish or enforce a drug testing policy, nor does it require an employer to allow or accommodate the use of medical cannabis or to modify any job or working conditions of any employee who engages in the use of medical cannabis.  More specifically:

  • Employers are not prohibited from refusing to hire, discharging, disciplining, or otherwise taking adverse employment action against an individual with respect to terms, conditions, or privileges of employment as a result of that individual’s medical use of medical cannabis—regardless of the individual’s impairment or lack of impairment resulting from the medical use of medical cannabis.
  • Similarly, the Act does not create a private right of action by an employee against an employer for refusing to hire, discharging, disciplining or otherwise taking an adverse employment action against that employee with respect to terms, conditions or privileges or employment due to the individual’s medical use of medical cannabis.
  • Employers may discipline employees who use medical cannabis in the workplace or who work while under the influence of medical cannabis.

However, employers must comply with other state and federal laws that might be implicated.

The Act also amends Mississippi’s workers’ compensation laws to account for medical cannabis use.  Notably, the Act does not affect, alter or otherwise impact the workers’ compensation premium discount available to employers who establish a drug-free workplace program in accordance with Miss. Code §§ 71-3-201 et seq.  In addition, the Act does not impact an employer’s right to deny or establish legal defenses to the payment of workers’ compensation benefits to an employee on the basis of a positive drug test or refusal to submit to or cooperate with a drug test, as provided under Miss. Code §§ 71-3-7 and 71-3-121.

We will continue to monitor the implementation of Mississippi’s new medical cannabis program and the forthcoming regulations being promulgated by the Departments of Health and Revenue.  If you need Labor & Employment counsel, please contact any member of Brunini’s Labor & Employment Practice Group.

Related Attorneys

U.S. Supreme Court Clears Way for CMS’s Mandatory-Vaccination Rule to Proceed

by

By: Claire Williams and Chris Fontan

On January 13, 2022—the same day that it blocked a Vaccination-or-Testing mandate issued by the Occupational Safety and Health Administration (“OSHA”)—the U.S. Supreme Court cleared the way for enforcement by the Centers for Medicare & Medicaid Services (“CMS”) of its rule requiring COVID-19 vaccinations for more than 10 million healthcare workers.

In a 5-4 opinion, the Court lifted two previous injunctions blocking CMS’s rule that was issued in November 2021 by the Secretary of Health and Human Services (“HHS”). The CMS Rule provides that, in order to receive Medicare and Medicaid funding, participating healthcare facilities must ensure that their staff are fully vaccinated against COVID-19, unless otherwise exempt for medical or religious reasons.  A facility’s failure to comply with the CMS Rule can lead to monetary penalties, denial of payment for new admissions, and ultimately termination of participation in the Medicaid and Medicare programs.

In its per curiam opinion, the Court held that that the CMS Rule falls within the authorities that Congress conferred upon the HHS Secretary.  In so holding, the Court stated that “the Secretary did not exceed his statutory authority in requiring that, in order to remain eligible for Medicare and Medicaid dollars, the facilities covered by the interim rule must ensure that their employees be vaccinated against COVID-19.” Justice Thomas authored a dissenting opinion, which was joined by Justices Alito, Gorsuch, and Barrett.

With the injunctions lifted, covered healthcare facilities need to ensure they are in compliance with the CMS Rule, including CMS’s most recent guidance. Most pressingly, covered healthcare workers must have at least one COVID-19 vaccine by January 27, and a second vaccine by February 28.

Notably, the Court’s opinion is on the district court injunctions, and not on the merits of each case.  Two separate court challenges to the CMS vaccine mandate remain.  With its ruling, the Supreme Court stayed the earlier injunctions pending disposition of the appeals in the United States Courts of Appeals for the Eight and Fifth Circuit.

We are monitoring these events and will update you accordingly.  In the meantime, feel free to contact any member of Brunini’s Labor & Employment Practice Group if you wish to discuss.

 

 

 

Related Attorneys

U.S. Supreme Court Blocks OSHA’s Vaccine-or-Test Rule for Large Employers

by

By: Claire Williams and Chris Fontan

On January 13, 2022, the Supreme Court of the United States re-instated a nationwide stay of the Occupational Safety and Health Administration’s (“OSHA”) COVID-19 Vaccination and Testing Emergency Temporary Standard (“ETS”).  The Court’s stay of OSHA’s ETS prevents OSHA from enforcing the standard, which officially went into effect on January 10, 2022.

In a per curiam opinion, the Court held that emergency relief from the ETS is warranted because the applicants, including 27 states, are likely to prevail on their argument that OSHA’s ETS exceeds its statutory authority and is unlawful.  The Court reasoned that “[a]lthough Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly.”  The Court went on to state that “requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category.”

Justice Gorsuch authored a concurring opinion, which was joined by Justices Thomas, and Alito.  Justices Breyer, Sotomayor and Kagan dissented.

The Supreme Court’s stay remains in place pending further litigation and a ruling on the merits of the petitions for review in the United States Court of Appeals for the Sixth Circuit.  However, given the limited shelf-life of the ETS itself and the language used by the majority of the Justices, many feel that the Supreme Court’s decision on the stay ultimately seals the fate of the ETS.   We are monitoring these events and will update you accordingly.  In the meantime, feel free to contact any member of Brunini’s Labor & Employment Practice Group if you wish to discuss.

 

 

 

Related Attorneys

Mississippi Environmental Quality Permit Board Summary of Meeting Held January 11, 2022

by

Prepared By Brunini, Grantham, Grower & Hewes, PLLC

The Mississippi Environmental Quality Permit Board (“Board”) convened at 9:00 a.m. on January 11, 2022.  This meeting was held through a telephone conference call and the public was invited to listen to the deliberations of the Board. The Board first approved minutes from the previous meeting held on December 14, 2021 and the non-controversial actions/certifications completed by the staff since the December meeting. Then, following a prepared agenda, the Board considered items as follows:

OFFICE OF GEOLOGY

Ron Porter (MDEQ Office of Geology, Mining and Reclamation) presented the MDEQ Staff’s recommendations and Board approved the following:

Surface Mining Bond Release

Permittee County Permit Staff Recommendation
Wet Mine Assets Holding, LLC Hancock P04-008AT Additional 10%
WG Yates & Sons Construction Jackson P87-045T Final 20%

 Other Business

Roy Furrh, MDEQ Chief Counsel, reminded the Permit Board members that they need to complete their annual compliance forms; statement of economic interest forms and EPA conflict forms.

Mr. Furrh also stated that the February 8, 2022 Permit Board Meeting will probably be in person.

The next Permit Board meeting will be held on February 8, 2022, at 9 a.m.

This Newsletter is a publication of the Environmental Practice Group of the law firm of Brunini, Grantham, Grower & Hewes located in Jackson, Mississippi. This Newsletter is not designed or intended to provide legal or professional advice, as any such advice requires the consideration of the facts of the specific situation.

If you have any questions concerning the content of a newsletter, or if you would like further information about the matters addressed in a newsletter, please contact John Milner, the Brunini Firm Environmental Practice Group leader, at jmilner@brunini.com or (601) 960-6842.

Related Attorneys

U.S. Supreme Court Hears Oral Argument on OSHA’s Vaccine-or-Test Rule for Large Employers

by

By: Chris Fontan

In a rather unprecedented proceeding, all nine justices of the U.S. Supreme Court heard oral arguments on Friday, January 7, 2022 concerning legal challenges to the Occupational Safety and Health Administration’s (“OSHA”) COVID-19 Vaccination and Testing Emergency Temporary Standard (“ETS”).  Specifically, challengers comprised of private entities and state attorneys general argue that OSHA overstepped its statutory authority when it issued the ETS requiring employers with at least 100 employees to mandate either vaccinations, or masking and weekly testing for workers.

As previously reported, a three-judge panel of the United States Court of Appeals for the Sixth Circuit previously dissolved a stay of the ETS, allowing OSHA to proceed with enforcement of the ETS’ mandates.  Within several hours of that decision, multiple parties, including 27 states, filed emergency motions with the Supreme Court seeking to block the ETS and requesting an emergency stay of its enforcement.  Justice Brett Kavanaugh took the rather unprecedented action of not unilaterally deciding the immediate stay issue himself, but instead referring this stay request to the full Court.

While it is always dangerous to predict the actions of the Court based solely on the questions asked during oral argument, many legal commentators initially speculate that the conservative majority of the Court seems primed to ultimately enjoin the ETS on the basis that it is too broad and not clearly authorized by Congress.  Decisions in the cases are expected soon, perhaps as early as over the weekend or by Monday, January 10. Timing is, of course, important as the first requirements of the ETS—everything but the weekly testing requirements—are set to take effect Monday, January 10, unless the Court acts before then to block them. The remaining testing requirements are slated to take effect Wednesday, February 9, 2022.

We are monitoring these events and will keep you posted.  In the meantime, feel free to contact any member of Brunini’s Labor & Employment Practice Group if you wish to discuss.

 

 

Related Attorneys

Attorney Matt Allen Receives Ph.D from The University of Southern Mississippi

by

Brunini Law Firm congratulates Matt Allen for receiving his Ph.D in Criminal Justice from the University of Southern Mississippi.  He has practiced law with the firm since 2005.

A Ph.D in criminal justice requires years of in-depth study and knowledge of all facets of the criminal justice system, from law enforcement to courts to corrections, as well as a dissertation on a chosen topic of focus. Matt’s dissertation was entitled Obstacles to the Implementation of Criminal Justice Reform, and it focused on barriers to the implementation of reform legislation that has already been enacted into state law by the Mississippi State Legislature.

“Matt is a super bright, hard-working attorney who holds strong and honorable convictions about making his community a better place to live and work,” said Cody Bailey, Department Chairman. “He will no doubt use his doctorate in criminal justice to that end, and we look forward to seeing all the good he will accomplish.”

Prior to joining Brunini Law Firm, Allen clerked for the Honorable William H. Barbour, Jr. of the United States District Court for the Southern District of Mississippi.

 

For more information contact: Elizabeth Tyler, Marketing

etyler@brunini.com

Related Attorneys