On April 4, 2022, a merits panel of the D.C. Circuit Court of Appeals will hear oral arguments on a petition seeking to force OSHA to issue a permanent standard for healthcare occupational exposure to COVID-19 and to reinstate the Healthcare Emergency Temporary Standard on Occupational Exposure (Healthcare ETS) to COVID-19 pending the permanent standard. The D.C. Circuit Court of Appeals’ referral of this matter to a merits panel was initiated by the Court’s own motion.

On December 27, 2021, OSHA announced the withdrawal of the Healthcare ETS and confirmed its intent to issue a permanent infectious disease standard. Less than two weeks later, on January 5, 2022, National Nurses United and several other labor unions filed an Emergency Petition for a Writ of Mandamus and Request for Expedited Briefing and Disposition with the D.C. Circuit Court of Appeals. In re: National Nurses United, et al., No. 22-1002 (D.C. Cir. Jan. 5, 2022).

The unions argue that OSHA has failed to adequately protect nurses and other healthcare workers from COVID-19. OSHA filed its opposition to the petition on January 21, 2022, arguing, among other things, that OSHA was unable to finalize a permanent healthcare standard because it focused the agency’s resources on its COVID-19 Vaccination and Testing Emergency Temporary Standard (which was also withdrawn). OSHA indicated it expects to complete rulemaking for a permanent healthcare standard within six-to-nine months.

The Healthcare ETS applied in settings where COVID-19 patients are treated, and it required healthcare employers with more than 10 employees to develop and implement written COVID-19 plans that included the following elements:

  • Assigning a designated safety coordinator;
  • Patient screening and management;
  • Policies and procedures to comply with CDC guidelines;
  • Facemask and PPE requirements;
  • Protections while using aerosol-generating procedures on persons with suspected or confirmed COVID-19;
  • Physical distancing;
  • Solid barriers at employee work stations;
  • Cleaning and disinfection protocols;
  • HVAC system requirements;
  • Health screening and medical management requirements;
  • Paid leave for vaccinations, vaccination recovery, and medical removal from work due to COVID-19 infection or certain COVID-19 exposures;
  • Employee training;
  • Anti-retaliation protections;
  • Employee COVID-19 logs; and
  • Reporting work-related COVID-19 fatalities and in-patient hospitalizations.

OSHA has indicated its forthcoming permanent infectious disease standard will cover all industries and address airborne, droplet, and non-bloodborne contact diseases.

While OSHA has indicated it may use the now-withdrawn Healthcare ETS to support citations against healthcare employers under the General Duty Clause of the OSH Act, only the COVID-19 log and reporting provisions formally remain in effect.

Reinstatement of the Healthcare ETS would have a significant impact on covered employers, particularly as COVID-19 cases appear to be dropping throughout the country and more jurisdictions are loosening restrictions.

Please contact a Jackson Lewis attorney with any questions.

California employers are required to post their annual summary of work-related injuries and illnesses, including COVID-19 illness, in a visible and easily accessible area at every worksite from February 1st through April 30th. Employers are required to use Cal/OSHA’s Form 300A for this posting. Read the full article on the California Workplace Law Blog by clicking here.

The Occupational Safety and Health Administration (OSHA) has withdrawn its enforcement of the Emergency Temporary Standard (ETS) requiring most employers to mandate COVID-19 vaccines or tests for employees.

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In a 6-3 ruling, the U.S. Supreme Court has granted a temporary stay of the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS).

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The U.S. Supreme Court heard oral arguments today in the OSHA ETS case.  Of course one never knows how the Court will rule, but if the Justices’ questions are any indication, there could be a 6-3 split in favor of a stay, with Chief Justice Roberts, Justice Thomas, Justice Alito, Justice Gorsuch, Justice Kavanaugh, and Justice Barrett voting in favor and Justice Breyer, Justice Kagan, and Justice Sotomayor dissenting.

All parties made very short opening remarks and then invited the Justices’ questions.  The common theme on which Justice after Justice questioned the parties was not whether vaccinations are helpful in the fight against COVID-19 or whether mandates are lawful generally, but who gets to decide these public health questions?  Much of the questioning and arguments focused on the major question doctrine, what factors determine when to invoke that doctrine, and whether Congress specifically delegated authority to OSHA to legislate the ETS at issue.  As the petitioners challenging the ETS argued, the OSHA ETS is a wide-sweeping workplace rule, not tailored to any particular industry and issued without consideration of specific levels of risk in different work environments.  They argued that the extraordinary power of an emergency rule requires that the rule have more precision, based on an industry-by-industry analysis.  The Solicitor General argued that Congress lawfully delegated the authority to OSHA to issue the ETS when it enacted the Occupational Safety and Health Act of 1970 (the “OSH Act”), the ETS is necessary to protect unvaccinated workers from grave danger due to COVID-19, and that given the ongoing pandemic OSHA considered and properly balanced the various competing interests.  The current surge in COVID-19 cases created a backdrop against which the Solicitor General and several of the Justices expressed concern over issuing a stay.

During the arguments, Chief Justice Roberts questioned the Solicitor General on whether the government was “working across the waterfront” with multiple federal agencies and executive branch actions to legislate #covid19 workplace rules—noting the Center of Medicare and Medicaid Services (CMS) and federal contractor executive order vaccine mandates—without giving Congress a say or acknowledging states’ police powers.  He also expressed doubt that Congress envisioned OSHA having this much power or anticipated the likes of a COVID-19 pandemic when granting OSHA authority under the OSH Act more than 50 years ago.

Justice Alito suggested that with the ETS, the government was trying to “squeeze an elephant through a mousehole,” questioned the Solicitor General about people’s personal medical decisions about vaccination, and questioned whether regular COVID-19 testing was even a viable option at this point.

Justice Breyer expressed concern about the growing number of daily cases, noting that yesterday the nation had around 750,000 new cases.  Petitioners argued however, citing Alabama Assoc. of Realtors, et al. v. HHS, 594 U.S. _____ (2021) (CDC eviction moratorium decided by the High Court August 26, 2021), that while combatting the spread of COVID-19 is a noble goal, no matter how well-intentioned, the ends cannot justify the means when those means are unlawful.

Whatever the outcome, it needs to come fast because employers need clarity.

If you have questions or need assistance on the OSHA ETS, please reach out to the Jackson Lewis attorney with whom you regularly work, or any member of our Workplace Safety and Health Practice Group or our OSHA ETS Team.

The Occupational Safety and Health Administration (OSHA) has announced that it is withdrawing most of the Emergency Temporary Standard for healthcare employers (Healthcare ETS) it promulgated more than six months ago.

To read this article in its entirety, please click here.

More than six months after the Occupational Safety and Health Administration (OSHA) promulgated an Emergency Temporary Standard for healthcare employers (Healthcare ETS), OSHA announced its intentions to propose an infectious diseases standard covering all industry sectors in April 2022. The agency said the new standard will address airborne, droplet, and non-bloodborne contact diseases.

To read the article in its entirety, please click here.

The U.S. Supreme Court has scheduled expedited arguments on the  U.S. Court of Appeals for the Sixth Circuit’s decision to lift the Fifth Circuit’s stay of the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS).

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The U.S. Court of Appeals for the Sixth Circuit has lifted the Fifth Circuit’s stay of the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS) on COVID-19 vaccination and testing for employers with at least 100 employees. Multiple parties, including 27 states, have filed emergency motions with the U.S. Supreme Court to block the ETS.

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

OSHA quickly announced that it will not issue citations for noncompliance before January 10, 2022. The agency also stated it will exercise its discretion and not issue citations for noncompliance with testing requirements under the ETS before February 9, 2022, if an employer is exercising reasonable, good faith efforts to come into compliance with the standard.

The ETS includes face covering requirements, a written policy, collection of proof of vaccination, creation of a vaccination status roster, removal of COVID-19 positive or untested employees from the workplace, maintenance of employee medical records and certain employee communications about the employer’s policies and vaccine information from the CDC. Covered employers will need to decide whether to adopt a mandatory vaccination policy, subject to reasonable accommodations and required exemptions, or a vaccination or weekly test policy. Covered employers implementing a mandatory vaccination plan still must comply with all other requirements, such as weekly testing for employees who are excused from the mandate as a reasonable accommodation.

None of the 22 approved State Plans, including Puerto Rico, covering private employers have taken steps to enact an ETS, but they are required to notify OSHA of their intentions to do so within 15 days of promulgation of the standard, and to act within 30 days. (Uniquely, although Puerto Rico has an OSHA State plan,  the governor has already mandated employers with 50 or more employees implement a mandatory vaccination policy, a measure arguably equally or more effective than the ETS. Thus, Puerto Rico’s State Plan OSHA may not need to implement the OSHA ETS). In addition, California’s Cal/OSHA has approved revisions to the state’s existing COVID-19 emergency temporary standard. It is unclear whether it will take further action now with respect to the OSHA ETS.  It is also unclear whether the Fifth Circuit stay that was in effect until December 17 tolls the deadlines for  OSHA State plan adoption deadlines. The ETS has immediate effect in the other 29 states and territories, albeit with the new enforcement delays.

Employers in states and localities that prohibit or restrict vaccination or face covering requirements must be mindful of state and local laws, ordinances, and executive orders that might limit the employer’s ability to require vaccination or otherwise conflict with ETS requirements, particularly if an employer opts for the ETS’s mandatory vaccination policy. While the Sixth Circuit lifted the stay, it has yet to decide the case on the merits, including arguments over whether the ETS overrides state or local laws due to federal preemption. Significantly, Alabama, Arkansas, Florida, Iowa, Kansas, Montana, North Dakota, Tennessee, Texas, Utah, and West Virginia have enacted measures that would restrict or impact vaccination requirements. Some of these states are OSHA State Plans and some are actually federal OSHA jurisdictions, creating additional compliance confusion.

Several petitioners have already appealed to the U.S. Supreme Court to stay enforcement of the ETS, emphasizing the irreparable harm they will suffer in having to implement the ETS and providing supporting witness declarations. They continue to argue irreparable harm based on labor shortages, the unavailability of tests and unintended — and ironically — consequences of laying off vaccinated workers to financially support compliance. In addition to the challengers’ concerns about the economic viability of their businesses, they argue their likelihood of success in enjoining the standard on the merits and balance of equities weighing in favor of a stay.

Emergency appeals, such as the request for a stay of a ruling by a Circuit Court, go directly to a justice assigned to that Circuit — in this case, to Justice Brett Kavanaugh, who is assigned to the Sixth Circuit. The assigned justice may distribute the application to the full court to consider or decide the request on their own. Just a few months ago, Justice Amy Coney Barrett rejected an emergency request made by a group of Indiana University students who sought to block enforcement of the school’s vaccine mandate after the Seventh Circuit refused to enjoin the mandate. Justice Barrett did not refer the emergency application to the full Supreme Court and did not provide an explanation in the denial of the petitioners’ request.

If you have questions or need assistance on the OSHA ETS, please reach out to the Jackson Lewis attorney with whom you regularly work, or any member of our Workplace Safety and Health Practice Group or our OSHA ETS Team.

If President Joe Biden’s Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS) vaccine or testing mandate for employers goes forward, nearly half the states have the option of going their own way.

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