Tag: OSHA ETS

U.S. Supreme Court Shoots Down COVID-19 Shot-or-Test Rule

The U.S. Supreme Court has blocked the Occupational Safety and Health Administration’s emergency “vaccine-or-test” rule mandating private employers with 100 or more employees to institute a policy requiring their employees to be vaccinated against COVID-19 or undergo weekly testing.

The Court ruled 6-3 to block the vaccine-or-test rule on the basis that OSHA had exceeded its authority in enacting the emergency rule. The Court described the rule as “a significant encroachment into the lives—and health—of a vast number of employees.” Had the rule not been rejected by the nation’s highest court, it would have required roughly 84 million workers to be fully vaccinated against COVID-19 or submit to weekly testing and wear a mask at work. Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan dissented.

While blocking the vaccine-or-test rule for large private employers, the Court ruled 5-4 to allow a separate rule to take effect which mandates the COVID-19 vaccine for workers in nursing homes, hospitals, and other facilities that receive Medicare and Medicaid payments from the federal government. The Court reasoned that the regulation serves to protect patients and ensure that healthcare providers take steps to avoid transmitting a dangerous virus to their patients. The Court noted: “It would be the very opposite of efficient and effective administration for a facility that is supposed to make people well to make them sick with COVID–19.” Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Amy Coney Barrett dissented.

©2022 Roetzel & Andress
For more articles on SCOTUS, visit the NLRLitigation / Trial Practice section.

What Should Your COVID-19 Vaccination/Test Policy Contain?

Every employer who employs at least 100 employees is anxiously awaiting the decision from the United States Supreme Court on OSHA’s Vaccination and Testing Emergency Temporary Standard (ETS). One thing that cannot be avoided is having a policy in place/ready to go given that the January 10, 2022 enforcement date from OSHA is here.

Specifically, the ETS requires employers to have a written policy on COVID-19 vaccinations. Employers are able to decide whether to have a policy that mandates vaccinations for employees. Such a policy must address the following:

  1. The requirements to be vaccinated against COVID-19,
  2. Exclusions for medical reasons/accommodations based on disabilities and/or religious beliefs,
  3. Information required to be submitted regarding the employee’s vaccination status and how to provide the information to the employer,
  4. Paid time for vaccination purposes (up to four hours of leave for each dose that is not deducted from the employee’s leave bank) and sick leave for the vaccine’s side effects of up to 2 days (which can be deducted from the employee’s leave bank, if leave is available),
  5. Obligations to notify the employer of a positive test result and removal COVID-19 positive employees from the workplace, and
  6. Discipline for failure to comply with the policy.

For employers who choose not to mandate vaccines, they still have to have a policy that provides for the information above but allows employees to choose to submit to weekly COVID-19 testing and wear a face covering. Notably, of course, the weekly testing obligation for those who are not vaccinated is not in effect until February 9, 2022. However, if the ETS survives Supreme Court scrutiny (oral arguments were held last Friday, January 7, 2021), employees who report to the workplace weekly must submit to testing once every 7 days or within 7 days of reporting to the workplace if they do not work in person weekly.

The policy should inform employees of the testing obligation and that employees cannot both self-administer and self-read a test unless at least one step is observed by the employer or an authorized telehealth proctor.

With no guarantee as to how and when the Supreme Court will rule and given these enforcement dates, it is past time for employers to be developing their policies, collecting vaccination information, and informing employees who are not fully vaccinated, that they will be required to wear face coverings (and that weekly testing will begin in February).

© 2022 Foley & Lardner LLP

Article By Carrie Hoffman of Foley & Lardner LLP

For more articles on vaccination, visit the NLR Coronavirus News section.

Stay of OSHA Emergency Temporary Standard Lifted By Sixth Circuit – “All Systems Go,” For Now…

A divided panel of the United States Court of Appeals for the Sixth Circuit lifted the stay on the Occupational Safety and Health Association’s Emergency Temporary Standard (“OSHA ETS”) late Friday night (December 17, 2021). The Sixth Circuit had previously been selected at random to hear the consolidated OSHA ETS litigation.

As a result of the Sixth Circuit’s ruling, OSHA announced that it would exercise enforcement discretion with respect to the compliance dates of the OSHA ETS.  To provide employers with sufficient time to come into compliance:

  • OSHA will not issue citations for noncompliance with any requirements of the OSHA ETS before January 10, 2022; and

  • OSHA will not issue citations for noncompliance with testing requirements before February 9, 2022.

These “extensions” are conditioned on an employer exercising reasonable, good faith efforts to come into compliance with the OSHA ETS.

Ultimately, the Sixth Circuit found that the petitioners (Republican-led states, businesses, religious groups, and individuals) were unable to establish a likelihood of success on the merits. In doing so, the Sixth Circuit considered and analyzed a myriad of statutory and constitutional arguments. Two out of the three judges on the panel determined that the petitioners would be unlikely to be successful on their constitutional arguments that OSHA violated the commerce clause or the non-delegation doctrine.

Under the Occupational Safety and Health Act, OSHA is required to show that health effects may constitute a “grave danger” in order to warrant an emergency temporary standard. The Sixth Circuit held that the determination as to what constitutes “grave danger” should be left, in the first instance, to the agency. The Sixth Circuit expressly disagreed with, and in effect overruled, the United States Court of Appeals for the Fifth Circuit by holding that OSHA was not required to make findings of exposure in all covered workplaces. The Sixth Circuit held that to require so would mean that no hazard could ever rise to the level of “grave danger.” Ultimately, the Sixth Circuit found that OSHA had shown that COVID-19 is a danger and relied on proper science in issuing the ETS. The Sixth Circuit further held that simply because OSHA did not issue the ETS at the beginning of the pandemic did not mean the agency did not consider COVID-19 an emergency worth addressing.

The Sixth Circuit’s decision was appealed this morning to the Supreme Court; however, this appeal does not alter the decision unless and until the Supreme Court rules.  In the meantime, employers should resume (or continue) preparations to comply with the ETS requirements. For a summary of the OSHA ETS and its requirements, visit here.

Article By Lilian Doan Davis and Isaac T. Caverly of Polsinelli PC

For more coronavirus legal news, click here to visit the National Law Review.

© Polsinelli PC, Polsinelli LLP in California