Labor and Employment

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.

 

 

 

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.

 

 

 

By:  Chris Fontan

Late Friday, December 17, 2021, a three judge panel of the Sixth Circuit Court of Appeals dissolved a previously issued stay of the Occupational Safety and Health Administration’s (“OSHA”) COVID-19 Vaccination and Testing Emergency Temporary Standard (“ETS”).  Shortly after the ruling by the Sixth Circuit, OSHA posted a notice on its website, adjusting its previously established deadlines for compliance with the ETS.

In a 2-1 split vote, the three judge panel determined that, in light of the continued spread of COVID-19 variants, OSHA “must be able to respond to dangers as they evolve.” Judge Jane B. Stanch, an appointee President Barack Obama, authored the opinion. Judge Julia Smith Gibbons, an appointee of President George W. Bush, sided with Judge Stanch.  Judge Joan Larsen, an appointee of President Donald Trump, dissented, noting employees are exposed to COVID-19 even while not working and OSHA had not established there was “grave danger” in the workplace or the ETS requirements would correct that.

OSHA quickly recognized the victory, while at the same time acknowledging the uncertainty that the litigation has caused. As a result, OSHA notified the public of new compliance dates concerning the ETS.  According to a new notice on the agency’s website, OSHA announced that it was “exercising enforcement discretion with respect to the compliance dates of the” mandate. OSHA stated that “it will not issue citations for noncompliance with any requirements of the [mandate] before January 10 and will not issue citations for noncompliance with the [mandate’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 also promised to “work closely with the regulated community to provide compliance assistance.”

Based on this announcement, the current deadlines for the OSHA ETS include:

• Immediately: Covered employers must start taking good faith efforts to come into compliance with the ETS.
• January 10, 2022: New deadline for covered employers to:
  • Have written COVID-19 Vaccine-or-Testing Policy prepared describing the requirements with regard to vaccinations and testing
  • Provide specific information about vaccines and the ETS requirements to employees
  • Determine the vaccination status of each employee (and keeping records related to vaccination status)
  • Start requiring masking of unvaccinated employees
  • Provide PTO for employees to get vaccinated
• February 9, 2022: New deadline for covered employers to:
  • Start requiring weekly COVID-19 testing for unvaccinated employees (and keeping records related to weekly testing)

Within several hours of the decision, multiple parties, including 27 states, filed emergency motions with the U.S. Supreme Court to block the ETS and requested an emergency stay of its enforcement. Those applications will be reviewed by Justice Brett Kavanaugh, who is assigned to hear petitions from the Sixth Circuit Court of Appeals. At this point, the Supreme Court has several options, including: granting the petitioners’ applications and staying the ETS pending review of the entire Court; granting the petitioners’ application but, given OSHA’s decision to delay compliance dates, not issuing a stay and simply referring the applications to the full Court for a decision; or taking no action on the applications pending review of the full Court.

Although it is always difficult to predict how quickly a ruling might come, experts predict that the Supreme Court will most likely take action in advance of January 10, 2022, to give employers some certainty. Employers are encouraged to continue to monitor developments with the ETS and pending litigation involving its implementation and to contact their labor and employment counsel for additional information concerning these developments.  If you need Labor & Employment counsel, please contact any member of Brunini’s Labor & Employment Practice Group.

 

 

 

 

By:  Chris Fontan

On November 4, 2021, the Occupational Safety and Health Administration (“OSHA”) released its anticipated, or controversial, emergency temporary standard (“ETS”) aimed at curbing further spread of COVID-19. The ETS—which is a “vaccinate-or-test” workplace mandate—applies to most employers with 100 or more employees (“Employers”).  Under the ETS, Employers must either mandate COVID vaccinations or require masking combined with proof of negative COVID tests on a weekly basis as a condition of employment.

All requirements of the ETS, other than testing for unvaccinated employees, are effective 30 days after publication of the ETS in the Federal Register (i.e., Dec. 5, 2021). Thus, the ETS requires Employers to ensure all unvaccinated employees working “in person” begin wearing masks by Dec. 5, 2021, and start providing negative COVID-19 tests on a weekly basis beginning Jan. 4, 2022.

As expected, numerous legal challenges to the ETS have been and will continue to be made in the coming weeks. As we previously reported, the U.S. Court of Appeals for the Fifth Circuit recently enacted a nationwide injunction, temporarily preventing OSHA from enforcing the ETS.  While the future of the ETS remains uncertain due to this and similar legal challenges, it will take weeks of planning for employers to comply with the ETS’s deadlines. With that in mind, employers should continue preparing for the ETS as if it is going to take effect while litigation continues.  As a result, employers must continue to prepare for potential compliance with the ETS.

Overview of the ETS’ Requirements

According to a “Fact Sheet” prepared by OSHA, the ETS requires Employers to do the following:

• Implement a mandatory, written COVID-19 vaccination policy, with or without an exception allowing employees to instead undergo weekly COVID-19 testing (beginning Jan. 4, 2022) and wear a face covering at the workplace (beginning Dec. 5, 2021).
• Obtain proof of the vaccination status of each employee.
• Create a roster/list showing the vaccination status of each employee.
• Securely maintain both the proof of vaccination status and the roster/list.
• Provide employees with up to four (4) hours of paid time off to receive each primary vaccination injection/dose.
• Provide employees with a “reasonable amount” of paid sick leave to recover from any side effects experienced following each primary vaccination injection/dose.
• Ensure that each employee who is not fully vaccinated is tested at least weekly for COVID-19 (if in the workplace at least once a week) or within seven days before returning to work (if away from the workplace for a week or longer).
• Ensure that each employee who is not fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes (subject to specific, limited situations).
• Require employees to promptly provide notice when they receive a positive COVID-19 test (or are diagnosed with COVID-19). Immediately remove any employee, regardless of vaccination status, from the workplace who receives a positive COVID-19 test/is diagnosed with COVID-19, and keep the employee out of the workplace until the return-to-work criteria are met.
• Provide each employee with information they can understand about: the requirements of the ETS and workplace policies and procedures established to implement the ETS, the CDC document “Key Things to Know About COVID-19 Vaccines”, information about protections against retaliation and discrimination, and information about laws that provide for criminal penalties for knowingly supplying false statements or documentation.
• Report work-related COVID-19 fatalities to OSHA within 8 hours of the employer learning about them, and work-related COVID-19 in-patient hospitalizations within 24 hours of learning about them.
• Make certain records available to an employee or an employee representative for examination and copying.

Steps for Complying with the ETS

1. Determine if your organization is covered by the ETS.

 

2. Determine vaccination status of your organization’s employees.

 

3. Evaluate available options and logistics for testing—even Employer’s opting for full vaccination mandate will need testing options as a potential “reasonable accommodation” for claimed disabilities and/or religious exemptions.

 

4. Assess potential impact of paid-time-off and other new requirements.

 

5. Determine your organization’s approach and draft a written policy.

 

6. Craft necessary and required employee communications.

 

7. Establish your organization’s reporting and recordkeeping protocols.

Employers are encouraged to take these steps, to continue to monitor developments with the ETS and pending litigation involving its implementation and to contact their labor and employment counsel for additional information concerning these developments.  If you need Labor & Employment counsel, please contact any member of Brunini’s Labor & Employment Practice Group.

 

 

 

 

 

By: Chris Fontan

On Thursday, November 4, 2021, the Occupational Health and Safety Administration (“OSHA”) finally released its anticipated, and already controversial, emergency temporary standard (“ETS”) addressing COVID-19 testing and vaccination. The ETS—which is a “mandate-or-test” workplace vaccine rule—applies to most employers with 100 or more employees (“Employers”).  The ETS does not apply to: (1) employers who are covered by the recently-released Executive Order mandating vaccinations for federal employees and employees of federal contractors; (2) healthcare employers covered by the prior healthcare ETS; and/or (3) employees working from home or exclusively outdoors. After weeks of speculating over what was likely to be in the proposed rule, Employers are now left with the task of navigating their way through this new mandate.

Here is a general overview of the OSHA ETS:

100-Employee Threshold. In general, the OSHA ETS applies to employers with 100 or more employees. Unlike other OSHA standards that count employees on an “establishment” basis, the ETS covers any private employer with 100 or more employees across the entire company. This broad definition is much more inclusive and will affect many more employers than many previous OSHA standards. The ETS also expressly covers part-time, full-time, and remote employees in its “100 employee” count.

Vaccination Requirement. The ETS requires Employers develop, implement, and enforce a written, mandatory COVID-19 vaccination policy.  To meet this requirement, the policy must require vaccination of all employees, other than those for whom a vaccine is medically contraindicated, for whom a medical necessity requires a delay in vaccination, or who are otherwise entitled to a reasonable accommodation under the Americans with Disabilities Act or Title VII of the Civil Rights Act because they have a disability or sincerely held religious beliefs that conflict with the vaccination requirement.

As part of the required policy, the ETS requires Employers 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. At the same time, Employers must remain cognizant of their obligations to maintain the confidentiality of employee medical information, since OSHA and the EEOC view vaccine-related information like all employee medical information.

Testing Alternative. Consistent with President Biden’s initial announcement, the OSHA ETS also includes an exception from the vaccine mandate for Employers that instead establish, implement, and enforce a written policy allowing employees who are not fully vaccinated to elect to undergo weekly COVID-19 testing and wear a face covering at the workplace.  Those employees who are not fully vaccinated (including those entitled to reasonable accommodations for religious or medical reasons) must be 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 the workplace for a week or longer).

Employers must maintain a record of each test result. Employees who fail to provide documentation of a COVID test result must be excluded from the workplace until they provide such test result. Notably, the ETS excuses any employees who test positive or are diagnosed with COVID-19 from these testing requirements for 90 days following their positive test or diagnosis.

Face coverings. The ETS requires Employers to ensure that each employee who is not fully vaccinated (thus, those opting for the testing alternative) wears a face covering when indoors or when occupying a vehicle with another person for work purposes, except in certain limited circumstances, including: when an employee is alone in a room with floor to ceiling walls and a closed door; for a limited time while the employee is eating or drinking at the workplace, or for identification purposes in compliance with safety and security requirements; when an employee is wearing a respirator or facemask; or where the employer can show that the use of face coverings is infeasible or creates a greater hazard that would excuse compliance. In addition, employers must not prevent any employee, regardless of vaccination status, from voluntarily wearing a face covering unless it creates a serious workplace hazard (e.g., interfering with the safe operation of equipment).

Paid Leave.  As part of the ETS, Employers are required to provide employees “reasonable time”—defined as up to four hours of paid time, to receive each vaccination dose, including travel time.  Employers may not require use of accrued sick or personal time for these purposes. In addition, Employers must provide reasonable time and paid sick leave to recover from side effects experienced following each dose. Employers may require use of accrued sick or personal time for these purposes.

Positive COVID-19 tests and employee removal. The ETS also mandates that Employers require their employees to promptly provide notice when they receive a positive COVID-19 test or are diagnosed with COVID-19, regardless of vaccination status. Once such notice is provided, the Employer must immediately remove the employee from the workplace, regardless of vaccination status and the worker must remain removed from workplace until they meet specified criteria for returning to work. Importantly—the ETS does not require that Employers provide paid leave to employees who are removed from the workplace because of a COVID-19 positive result or diagnosis, though paid time may be required by other laws, or by a collective bargaining agreement.

Notice to employees. Under the ETS, Employers are required to provide employees the following (in an appropriate language and at a literacy level):

• Information about the requirements of the ETS and workplace policies and procedures established to implement the ETS;
• The CDC document “Key Things to Know About COVID-19 Vaccines”;
• Information about protections against retaliation and discrimination; and
• Information about laws that provide for criminal penalties for knowingly supplying false statements or documentation.

Interaction with OSHA and Recordkeeping. As an OSHA requirement, the ETS requires Employers to report work-related COVID-19 fatalities to OSHA within 8 hours of learning about them, and work-related COVID-19 in-patient hospitalizations within 24 hours of the employer learning about the hospitalization. In addition, at OSHA’s request, an Employer will have four (4) business hours to provide its policy on vaccination/testing, and until the end of the next business day to provide all other records that must be maintained (i.e. proof of each employee’s vaccination status or test results as required by the ETS).  Employees also have the ability to request their own vaccination or testing records, and may submit requests for the aggregate number of fully vaccinated employees in the workplace along with the total number of employees at that workplace.

Key Dates.  Employers are required to be in compliance with the bulk of the ETS by Sunday, December 5, 2021.  Employers must begin obtaining weekly test results for employees who have not received all doses required for primary vaccination no later than Tuesday, January 4, 2022.