Author: Eric J. Conn

BREAKING – OSHA Launches New COVID-19 Enforcement Blitz for Healthcare Employers

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By Conn Maciel Carey LLP’s COVID-19 Task Force

On Tuesday, March 8th, OSHA announced a major COVID-19 enforcement blitz in the healthcare industry that will last for the next three months.  OSHA issued an enforcement memorandum announcing the enforcement program, which OSHA is referring to as a major “saturation effort,” to ensure that hospitals and others in the healthcare industry have appropriate COVID-19 mitigation protocols in place to protect workers today and are prepared for a future variant.  The program will be comprised of a short-term burst of highly-focused inspections directed at hospitals and skilled nursing care facilities that treat COVID-19 patients.  Below is a summary of who is covered, when the enforcement effort will end, the impact on State OSH Plans, and what to expect during the inspections.

OSHA states that the goal of this inspection program is to expand its presence to ensure continued mitigation of the spread of COVID-19 and preparation for future variants of the SARS-CoV-2 virus, and to protect the health and safety of healthcare workers at heightened risk for contracting the virus.  New Assistant Secretary of Labor for OSHA Doug Parker stated:

“We are using available tools while we finalize a healthcare standard….  We want to be ahead of any future events in healthcare.”

OSHA plans to conduct as many as 1,000-1,500 inspections in the next 90 days to determine whether hospital and other healthcare workers are being adequately protected from COVID-19 spread at work.  The inspections will last 2-4 days and will focus on what had been the major elements of OSHA’s COVID-19 Emergency Temporary Standard for Healthcare.  The OSHA resources designated for this enforcement blitz and the revised COVID-19 National Emphasis Program (NEP) will comprise at least 15% of OSHA’s enforcement activity for the year.

Who is Covered by the Enforcement Effort?

The initiative supplements OSHA’s targeted enforcement under the Revised COVID-19 NEP [DIR 2021-03 (CPL 03)], by conducting focused, partial follow-up and monitoring inspections of previously inspected or investigated hospitals and skilled nursing care facilities within four North American Industry Classification System (NAICS) codes listed in the enforcement memorandum, where COVID-19 citations or Hazard Alert Letters were issued, including remote-only inspections where COVID-19-related citations were issued.  Specifically, facilities in the four NAICS codes listed below may be selected for inspections under the initiative if they meet one of the following criteria: Continue reading →

VOSH Begins the Process of Withdrawing its “Permanent” COVID-19 Rule

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By Conn Maciel Carey LLP’s COVID-19 Task Force

Last Wednesday (February 16th), at the direction of Virginia’s new Governor, Virginia OSHA’s Safety and Health Codes Board voted to withdraw VOSH’s COVID-19 Regulation. The Board’s vote came after VOSH recommended that COVID-19 no longer constituted a “grave danger,” the legal showing required to justify an emergency rule.  Procedurally, the board vote was just the first step. Next is a 30-day public comment period, followed by a public hearing, then a final Board vote. If the measure is in fact repealed after the final Board vote, then Virginia employers would no longer have to require employees who work indoors to wear a face covering,; social distance; provide employee training; improve or maintain ventilation systems; or inform the VA Department of Health about outbreaks.

Although this move comes in lock step with Friday’s CDC announcement that it is rescinding mask guidance, along with other states like California and New Jersey rescinding their mask mandate, on January 15th Virginia’s newly elected Governor Glenn Youngkin issued an Executive Order instructing the Board to Continue reading →

CDC Relaxes Face Covering and Distancing Guidelines

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By Conn Maciel Carey LLP’s COVID-19 Task Force

As governors and big city mayors across the country have been allowing indoor masking mandates to expire over the last few weeks, last Friday, February 25th, the CDC unveiled a brand new approach to assessing COVID-19 risks and setting mask and distancing recommendations.   The CDC’s old tool, which measured the number of COVID-19 cases to determine the relevant level of virus transmission in each community had lost its usefulness as it rendered nearly the entire country as high-risk (95% of all counties), even as the number of people getting seriously ill had dropped precipitously this year.

CDC’s new guidelines measure the impact the pandemic by looking at three factors week over week:

  1. New cases per capita (as with the prior guidelines; but also
  2. New COVID-19 related hospital admissions; and
  3. The percentage of area hospital beds occupied by COVID-19 patients.

Each county will have a weekly “COVID Community Level Rating” that is either Low (green), Medium (yellow) or High (orange).  Each level/color has recommended mitigation strategies, set in the table below:

Here is a link to CDC’s tool to identify the level of COVID-19 transmission in your county.

The big news is that CDC recommends Continue reading →

OSHA Withdraws Its Vaccinate-or-Test ETS, But Continues Rulemaking for Two Permanent COVID-19 Rules

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By Conn Maciel Carey LLP’s COVID-19 Task Force

Earlier today, January 26, 2022, OSHA published in the Federal Register a Notice of Withdrawal of its COVID-19 Vaccination, Testing, and Face Covering ETS.  After the Supreme Court’s January 13th decision in Nat’l Fed’n of Indep. Bus. v. Dep’t of Labor reinstituting the Stay of the ETS, the writing was on the wall for OSHA’s vaccinate-or-test ETS, but today’s announcement made it official.  The Notice of Withdrawal does not call for comment, as it is “impracticable, unnecessary, and contrary to the public interest.”  OSHA further explained that it would unnecessarily delay the resolution of ambiguity for employers and workers.  So that’s that for the Vaccinate-or-Test ETS, effective immediately.

Nevertheless, this dead horse may be in store for some more beating.  As you know, the day the ETS was published in the Federal Register back in November, pursuant to Sec. 6(c)(3) of the OSH Act, it became the “proposed rule” in a rulemaking that automatically kicked off to establish a permanent replacement vaccinate-or-test standard.  In OSHA’s other big announcement today, the agency indicated that it has not withdrawn that rulemaking.  Rather, OSHA declared its intent to move forward with a permanent rulemaking.

This was yet another fascinating development in this roller coaster.  While we anticipated that OSHA would withdraw the vaccinate-or-test ETS to avoid having a full merits adjudication by the Supreme Court that would establish more concrete precedent narrowing OSHA’s rulemaking authority, we continue to be surprised to see that OSHA is continuing on with the permanent rulemaking.

Recall that the Supreme Court did not say that OSHA’s ETS exceeded the agency’s emergency rulemaking authority.  Rather, the Court found that Continue reading →

The Latest with Pres. Biden’s Federal Contractor COVID-19 Vaccine-Mandate Executive Order

Eric J. Conn 1 Comment

By Conn Maciel Carey LLP’s COVID-19 Task Force

It has been a real adventure trying to track all the different legal challenges in so many different courts to President Biden’s various different executive actions related to vaccination.  While the fate of the OSHA Vaccinate-or-Test ETS (dead) and the CMC Healthcare Vaccine-Mandate (very much alive) are essentially settled by the Supreme Court, the Federal Contractor Vaccine-Mandate Executive Order (EO 14042) is still meandering its way through the federal courts.  And there was a lot of activity in the courts this past Friday, January 21st, regarding the federal contractor EO and the federal employee vaccination mandate.

In the first case, Feds for Medical Freedom v. Biden, employees of federal contractors and employees of the federal government together are challenging both Executive Orders 14042 (vaccine-mandate for federal contractors) and 14043 (vaccine-mandate for federal employees).  Judge Jeffrey V. Brown (a Trump-appointee to the S.D. of Texas) issued an opinion and order enjoining only enforcement of the federal employee mandate.  Judge Brown’s reasoning in that case boiled down to a conclusion that injunctive relief is appropriate because: (1) the “Hobson’s Choice” of a workplace vaccine-mandate creates irreparable harm; and (2) the challenging federal employees have a likelihood of success on the merits because the President acted ultra vires and the implementation of EO 14043 violates the Administrative Procedures Act.  Notably, Judge Brown declined to take action with regard to the federal contractor EO, noting that Judge R. Stan Baker (a Trump appointee to the S.D. of Georgia) in Georgia v. Biden had previously enjoined the federal government from enforcing the vaccination mandate on a nationwide basis.

While Judge Brown’s decision in Feds for Medical Freedom v. Biden did not change the status of the federal contractor EO, on the same day, Judge Baker issued a new order with regard to the injunction he had put in place in Georgia v. Biden in December.  First, Judge Baker declined to address whether private federal contractors are enjoined from mutually agreeing with a federal agency to include COVID-19 safety clauses in their contracts; i.e., to voluntarily comply with the Safer Federal Workforce Task Force (“Task Force”) guidelines, as he viewed that as improperly seeking an advisory opinion while the case is pending on appeal.  But on the broader question as to the scope of his national injunction, on Friday he wrote: Continue reading →

[BREAKING] Supreme Court Reinstitutes a Stay of OSHA’s Vaccinate-or-Test ETS

Eric J. Conn 3 Comments

By Eric J. Conn, Chair, OSHA Practice Group

After its normal release of opinions this morning that did not include a decision about whether to stay OSHA’s vaccinate-or-test ETS, this afternoon, at approximately 2:30 PM, the United States Supreme Court issued a per curiam decision reinstituting a stay of OSHA’s ETS.  Here is a link to the opinion of the Court.

A per curiam decisions is a court opinion issued in the name of the Court rather than specific judges, but it is certainly not an indication that the decision was unanimous or non-controversial, and in this instance, we know it was not that.  The decision was 6-3 with a concurrence by Justice Gorsuch (joined by Justices Thomas and Alito), and a joint dissent by Justices Breyer, Sotomayor, and Kagan.

What Was the Legal Basis for the Court’s Decision?

As we anticipated based on the tone of last week’s oral argument last week, the majority of the Court based its decision on the lack of an explicit enough delegation of authority from Congress for OSHA to issue a regulation of this significance and of an issue that is not unique to the workplace.  That rationale could have broader implications for OSHA’s regulatory reach than just this COVID-19 ETS (see heat illness):

“Although COVID–19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases. Permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization.”

Under this theory, the majority opinion indicates that Continue reading →

The Supreme Court Heard Oral Argument in the Legal Challenges to OSHA’s Vaccinate-or-Test Emergency Rule

Eric J. Conn 7 Comments

By Conn Maciel Carey LLP’s COVID-19 Task Force

This morning, the US Supreme Court heard oral argument in National Federation of Independent Business v. Department of Labor and Ohio v. Dept. of Labor, the consolidated cases challenging the legality of OSHA’s COVID-19 Vaccination, Testing, and Face Coverings emergency temporary standard.  Specifically, the question before the Court today was whether the OSHA ETS should be stayed pending the merits adjudication pending before the US Court of Appeals for the Sixth Circuit.

Although scheduled for just one hour, the argument in this rare OSHA case to appear before the Supreme Court lasted a little more than two full hours.

If you were not able to listen live this morning, here is a link to an audio recording on C-SPAN.  And here is a link to the transcript of the argument.

The Department of Labor was represented at argument by the Solicitor General Elizabeth Prelogar.  The lawyers representing the petitioners that are seeking an emergency stay of OSHA’s vaccinate-or-test ETS were:

  • Scott Keller from Lehotsky Keller LLP, representing National Federation of Independent Business and other industry associations; and
  • Benjamin Flowers, the Solicitor General of Ohio, representing Ohio and other petitioner states.

The Ohio Solicitor General, arguing against OSHA’s vaccinate-or-test ETS, appeared remotely for the argument because he tested positive for COVID-19, somewhat ironically, pursuant to the Supreme Court’s own testing mandate for lawyers who would appear in-person to argue before the Court.

Our very high level takeaway from the argument today, and based on the nature of the questions the various Justices asked and what we know about their jurisprudence, it seemed that the conservative majority of the Court Continue reading →

Chicago’s New Year Vaccine Requirements

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By Conn Maciel Carey LLP’s COVID-19 Task Force

As COVID-19 cases continue to rise throughout the state of Illinois, operators of indoor dining establishments, gyms, and entertainment venues where food and drinks are being served in the City of Chicago face a series of new requirements that necessitate quick action. Beginning January 3, 2022, Public Health Order 2021-2 will require all individuals over the age of 5, show proof of full vaccination to dine indoors, workout, and patronize entertainment venues. For purposes of the Public Health Order, fully vaccinated is the more restrictive of either the Centers for Disease Control and Prevention (CDC) guidance or Chicago Department of Public Health (CDPH) posted guidelines. For the time being, both the CDC and CDPH guidelines are aligned, defining fully vaccinated as two weeks after receiving the second dose in a two dose vaccination series and one week after receiving a single dose in a single dose vaccination series.  It remains to be seen if, or when, the recommended-but-not-required boosters will be added to that definition.

Employers, of course, must quickly figure out how to implement measures to comply with this Order—both with respect to customers/guests as well as with employees given that the Order does not have a minimum employee threshold like the Fed OSHA ETS.  This means that even small, independently owned restaurants and bars will be expected to comply even if they were not covered by the ETS which kicked in only at 100 employees.

Who is covered?

Public Health Order 2021-2 applies to the following venues: Continue reading →

Update on OSHA’s COVID Emergency Rule for Healthcare – And How It Affects the Vaccinate-or-Test ETS

Eric J. Conn 3 Comments

By Conn Maciel Carey’s COVID-19 Task Force

Last week, on December 27th, OSHA announced the withdrawal of most of its COVID-19 ETS for Healthcare, which was the first of the two COVID-19 emergency temporary standards OSHA issued in the first year of the Biden Administration.

This Healthcare ETS was issued back in June 2021 in response to President Biden’s Day 1 OSHA Executive Order.  Recall that this was the ETS that had been crafted by OSHA to apply to all employers in all industries, but as it was being finalized in late Spring, when it looked like we might just be approaching the end of the pandemic, the Administration decided to narrow the scope to just the healthcare industry.  That ETS was what we call a “programmatic” standard; requiring the development of a comprehensive COVID-19 prevention program, complete with an array of required engineering and administrative controls.  When the Healthcare ETS was issued, OSHA noted on its webpage for the ETS that it expected the ETS to be in effect for six months from the date of publication — until December 21, 2021.

December 21st came and went without any word from OSHA.  But on Monday of last week, , six days after the Healthcare ETS’s six-month anniversary, OSHA issued a statement that:

“[while OSHA] intends to continue to work expeditiously to issue a final standard that will protect healthcare workers from COVID-19 hazards, and will do so as it also considers its broader infectious disease rulemaking[,]” it is “withdrawing the non-recordkeeping portions of the healthcare ETS. The COVID-19 log and reporting provisions … remain in effect.”

Here is the full statement posted on OSHA’s Healthcare ETS webpage:

Why Did OSHA Withdraw Portions of the Healthcare ETS? Continue reading →

CDC Relaxes Isolation and Quarantine Recommendations – How Does That Affect OSHA’s Vaccinate-or-Test ETS?

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By Conn Maciel Carey’s COVID-19 Task Force

On December 27, 2021, the CDC updated and shortened its recommended isolation and quarantine periods for the general population.  To be precise, yesterday CDC issued a media statement laying out its new guidance, but CDC’s actual Isolation Guidance webpage has not yet been updated.  CDC explained in the statement that:

“[b]oth updates [to the isolation and quarantine periods] come as the Omicron variant continues to spread throughout the U.S. and reflects the current science on when and for how long a person is maximally infectious.”

What are CDC’s New Isolation and Quarantine Guidelines? 

With respect to isolation (which relates to behavior after a confirmed infection), CDC states:

“[g]iven what we currently know about COVID-19 and the Omicron variant, CDC is shortening the recommended time for isolation from 10 days for people with COVID-19 to 5 days, if asymptomatic, followed by 5 days of wearing a mask when around others.”

Explaining the change, CDC maintains that it is “motivated by science demonstrating that the majority of SARS-CoV-2 transmission occurs early in the course of illness, generally in the 1-2 days prior to onset of symptoms and 2-3 days after. Therefore, people who test positive should isolate for 5 days, and if asymptomatic at that time, they may leave isolation if they mask for 5 days to minimize the risk of infecting others.”

Additionally, with respect to quarantine (which refers to the time following exposure to the virus or close contact with someone known to have COVID-19), CDC states: Continue reading →

OSHA Updates its Testing-Related FAQs about the COVID-19 Vaccination, Testing, and Face Coverings ETS

Eric J. Conn 3 Comments

By Conn Maciel Carey LLP’s COVID-19 Task Force

We wanted to share (hopefully) one last ETS update before Christmas.  As you know, when the Fifth Circuit issued its Stay of OSHA’s Vaccination, Testing, and Face Coverings Emergency Temporary Standard (ETS) in November, OSHA announced that it had “suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.”  Essentially, OSHA said it was “pencils down” completely – no longer responding to email inquiries about interpretations of ETS terms, no longer speaking/presenting about the ETS, and importantly, no longer producing additional compliance guidance or FAQs.

With the Sixth Circuit lifting the Stay last week, however, OSHA immediately updated its website to reflect that the agency “can now once again implement this vital workplace health standard.”  OSHA went right back to work on compliance assistance, not just licking its chops to start enforcing the rule.  Indeed, in the last couple of days, OSHA has updated its FAQs on its Vaccination and Testing ETS webpage, including several about the confusing and challenging testing elements of the ETS (See Section 6 – and 6P. through 6.X. are the news testing FAQs).  Below are a few of the notable new testing-related FAQs that address questions we were fielding frequently (and thankfully answering correctly):

Continue reading →

OSHA’s Vaccinate-or-Test ETS in the Hands of the Supreme Court

Eric J. Conn 1 Comment

By Conn Maciel Carey LLP’s COVID-19 Task Force

As we shared over the weekend, at 6:50 PM on Friday night (December 17th), a three-judge panel at the US Court of Appeals for the Sixth Circuit dissolved the nationwide stay of OSHA’s Vaccinate-or-Test ETS that had been issued in early November by the Fifth Circuit.  That same night, several of the petitioners in the legal challenges to the ETS appealed the Sixth Circuit’s decision to the Supreme Court.

As we have been discussing for a while, the decision about the Stay of the ETS (and ultimately the legality of the ETS) was destined for the Supreme Court, and the Court, at least on the issue of the TRO/Stay, could choose to address the question either by:

  • the so-called “shadow docket,” with no briefing and a decision perhaps issued by a single Justice; or
  • more conventional proceedings, with briefing and oral argument, and likely a decision by all nine Justices.

Each of the nine Justices on the US Supreme Court is assigned to oversee one or more of the regional US courts of appeals.  Justice Kavanaugh is the justice assigned to the Sixth Circuit, to oversee requests for emergency review or shadow docket consideration from cases before the Sixth Circuit.  Justice Kavanaugh is part of what is becoming something of a triad of swing voters on the Court, along with justice Coney Barrett and Chief justice Roberts.

On Monday, Justice Kavanaugh issued an Order to the Department of Labor to submit briefing in response to the emergency petitions with a deadline of 4 PM on Thursday, December 30th.  The Order does not provide for any additional briefing by petitioners or friends of the court.  Then, just a few hours ago, the Court issued another Order setting the case for oral argument a week later, on January 7, 2022.

We now have a clearer picture of Continue reading →

FAQs About OSHA’s COVID-19 Vaccination, Testing, and Face Coverings Emergency Temporary Standard

Eric J. Conn 6 Comments

By Conn Maciel Carey’s COVID-19 Task Force

In a Friday night surprise (December 17th), the US Court of Appeals for the Sixth Circuit dissolved the nationwide stay of OSHA’s Vaccination, Testing, and Face Coverings ETS, so the ETS is alive and well (unless the U.S. Supreme Court puts it back on ice).  Accordingly, it is time for employers to take the steps necessary to come into compliance with the ETS.  To help our clients and friends in industry, Conn Maciel Carey LLP’s national OSHA Practice has created this extensive set of Q&As about OSHA’s COVID-19 Vaccinate-or-Test ETS.

The Q&A document addresses the current status of the ETS and the legal challenges to it, who is covered and who is exempted from the rule, the core elements of the ETS (i.e., what is required and prohibited by the ETS, when the requirements kick-in, etc.), and other issues around enforcement and compliance strategy.

In addition to this FAQ resource, we have also been working with dozens of companies to help them develop custom, compliant written COVID-19 Vaccination, Testing, and Face Coverings Policies, along with the necessary ancillary forms, as required by the ETS.  We have a questionnaire that we can work through with you to understand and make the best policy choices for your organization (e.g., what cap you will set for paid recovery time; whether to supply test kits to employees or require them to take tests offsite; how you will communicate to employees the information required to be shared; etc.), and with those answers, we develop a customized written program including: Continue reading →

[BREAKING] Sixth Circuit Rescinds Stay of OSHA’s Vaccinate-or-Test Emergency Temporary Standard

Eric J. Conn 6 Comments

By Conn Maciel Carey’s COVID-19 Task Force

We apologize for interrupting what we hoped be a quiet, pre-holiday weekend for everyone, but we have very important and time sensitive news to share about the status of OSHA’s Vaccination, Testing, and Face Coverings Emergency Temporary Standard (ETS).  It was a very busy Friday night for everyone in the OSHA world.  In a remarkable turn of events, at 6:50 PM yesterday evening (December 17th), the US Court of Appeals for the Sixth Circuit dissolved the nationwide stay of OSHA’s Vaccination ETS that had been issued by the Fifth Circuit in November.

The Department of Labor and OSHA then immediately issued a statement that OSHA was moving forward with implementation and enforcement of the ETS, but also provided some enforcement relief for companies able to demonstrate good faith efforts to comply.  Then, within an hour of the Sixth Circuit decision being released, numerous parties filed an emergency application and motion with the US Supreme Court requesting the Supreme Court reissue a stay of the ETS.  And then, finally, shortly after midnight (approximately 1 AM last night), South Carolina along with 26 other State Attorneys General and a host of private entities also filed an emergency application for a stay.  What a night.

We briefly summarize the Sixth Circuit’s decision below and explain the lay of the land as it stands at this moment, what might occur next and, most importantly, what this means for employers across the nation.  Bottom line is that events are moving fast, but as we said a few weeks ago, do not put a fork in the ETS, and continue to prepare to come into compliance with it.  It is alive and well, at least until we hear from the Supreme Court.

Sixth Circuit Decision 

In a 2-1 opinion written by Obama-appointee Judge Jane Stranch and, notably, joined by Bush appointee Judge Julia Gibbons, the Sixth Circuit rescinded the nationwide stay of OSHA’s ETS that had been issued by the Fifth Circuit first an administrative stay on November 6th and then as a TRO on November 12th. The three-judge panel that heard the case consisted of one Obama appointee, one Bush (W.) appointee, and one Trump appointee.  Judge Gibbons (the Bush appointee) joined Judge Stranch, but she also wrote a separate concurring opinion.  Trump-appointee Judge Joan Larsen, who had purportedly been on a Trump’s short-list of potential nominees to the Supreme Court, dissented.

In a nutshell, the Court’s rationale for lifting the stay is that Continue reading →

New York City Issues Private Employer Vaccine Mandate

Eric J. Conn 1 Comment

By Dan C. Deacon

For those of you with establishments in New York City, note that this week, Mayor Bill de Blasio and the New York City Commissioner of Health and Mental Hygiene issued a private employer vaccinate mandate, and yesterday published this implementation guidance for employers.

The key provisions of the mandate include:

1.  Beginning December 27, 2021, workers must provide proof of vaccination against COVID-19 to a covered entity before entering the workplace, and a covered entity must exclude from the workplace any worker who has not provided such proof, unless they are provided an accommodation for a disability or religious reason.

    • “Covered entity” means:
      • a non-governmental entity that employs more than one worker in New York City or maintains a workplace in New York City; or
      • a self-employed individual or a sole practitioner who works at a workplace or interacts with workers or the public in the course of their business.
    • “Worker” means an individual who works in-person in New York City at a workplace. Worker includes a full- or part-time staff member, employer, employee, intern, volunteer or contractor of a covered entity, as well as a self-employed individual or a sole practitioner.
      • Worker does not include:
        • an individual who works from their own home and whose employment does not involve interacting in-person with co-workers or members of the public;
        • an individual who enters the workplace for a quick and limited purpose (such as to use the bathroom, make a delivery, or clocking in and receiving an assignment before leaving to begin a solitary assignment); or
        • non-City residents who are performing artists, college or professional athletes, or individuals accompanying such performing artists or college or professional athletes who do not have to display proof of vaccination pursuant to the Key to NYC program, Emergency Executive Order No. 316 and successor Orders.
    • “Workplace” means any location, including a vehicle, where work is performed in the presence of another worker or member of the public.
    • “Proof of vaccination” means one of the following documents demonstrating that an individual has (1) been fully vaccinated against COVID-19; (2) received one dose of a single-dose COVID-19 vaccine; or (3) received the first dose of a two dose COVID-19 vaccine, provided that a worker providing proof of only such first dose provides proof of receiving the second dose of that vaccine within 45 days after receiving the first dose:
      • A CDC COVID-19 Vaccination Record Card or other official immunization record from the jurisdiction, city, state, or country where the vaccine was administered, or from a healthcare provider or other approved immunizer who administered the vaccine, that provides the person’s name, vaccine brand, and date of administration. A digital photo or photocopy of such record is also acceptable.
      • New York City COVID Safe App showing a vaccination record;
      • A valid New York State Excelsior Pass/Excelsior Pass Plus;
      • CLEAR Health Pass; or
      • Any other method specified by the Commissioner as sufficient to demonstrate proof of vaccination.

2.  Workers in New York City who perform in-person work or interact with the public in the course of business must show proof they have received at least one dose of a COVID-19 vaccine by December 27th.

        • Workers will then have 45 days to show proof of their second dose (for Pfizer or Moderna vaccines).

Continue reading →

Employment Law Implications of the OSHA ETS: Medical and Religious Accommodation Requests

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By Ashley D. Mitchell

Published in the Federal Register on November 5, 2021, the Federal OSHA Emergency Temporary Standard on Vaccination and Testing (“ETS”) first major compliance deadline was December 6, 2021. However, as a result of a stay entered by the 5th Circuit, and the 6th Circuit’s refusal to grant the Biden Administration’s petition to move up the briefing schedule, OSHA cannot begin enforcing, and has ceased all action, including answering employer questions about, the standard. (For continued updates on the status of the ETS review our Employer Defense Report and OSHA Defense Report.) Accommodation,Sign,With,Sky,BackgroundAs outlined in greater detail in a previous blog, the ETS generally requires employers with 100 or more employees to: develop employer policies on vaccination; provide paid time off for vaccination and to recover from vaccination; require employees to provide proof of full vaccination or submit to weekly testing; require unvaccinated workers to wear a face covering; remove COVID-19 positive cases from the workplace; and inform employees about the requirements of the ETS, COVID-19 vaccine efficacy and safety, prohibited retaliation, and the criminal penalties associated with knowingly supplying false statements or documentation. Given the robust requirements of the ETS, employers would be well advised to put in place mechanisms for compliance with the ETS in the event the stay is lifted, particularly if there is no delay in compliance deadlines. One important consideration is how to handle ETS-related medical and religious accommodation requests.

1. Background

Title I of the Americans with Disabilities Act of 1990 (ADA) requires employers to provide a reasonable accommodation, so long as it does not Continue reading →

Cal/OSHA Standards Board to Consider Revised COVID-19 Emergency Rule for Re-adoption

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CaptureThe Cal/OSHA Standards Board has issued a revised draft of the COVID-19 Emergency Temporary Standard (ETS) for a second re-adoption.  This draft shows in underlined text the latest proposed changes from the current emergency regulation (not the October draft text discussed in our prior blog post).  The second re-adoption of the ETS, if adopted, will be effective from January 14, 2022 to April 14, 2022, and then could be replaced by a “permanent” COVID-19 rule.

At its December 16, 2021 meeting, the Standards Board will consider this proposed revised ETS, as well as discuss the proposed “permanent” COVID-19 rule being considered to replace the ETS once the emergency rule expires.

Below are the areas where the ETS text proposed for a second re-adoption materially departs from the current rule: Continue reading →

Coalition to Work on OSHA’s Heat Illness Prevention Rulemaking

Eric J. Conn 3 Comments

By Eric J. Conn, Chair of Conn Maciel Carey LLP’s National OSHA Practice

While we and employers across the nation have been focused on OSHA’s issuance of its second COVID-19 emergency temporary standard in six months, earlier this month, OSHA published in the Federal Register an Advanced Notice of Proposed Rulemaking initiating a new formal rulemaking focused on “Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings” (the ANPRM).  The ANPRM provided this summary of OSHA’s action:

“OSHA is initiating rulemaking to protect indoor and outdoor workers from hazardous heat and is interested in obtaining additional information about the extent and nature of hazardous heat in the workplace and the nature and effectiveness of interventions and controls used to prevent heat-related injury and illness. This ANPRM provides an overview of the problem of heat stress in the workplace and of measures that have been taken to prevent it. This ANPRM also seeks information on issues that OSHA can consider in developing the standard, including the scope of the standard and the types of controls that might be required.”

And while everyone still has most of our focus on OSHA’s Vaccination, Testing, and Face Coverings emergency temporary standard, it is critical that those industries and employers potentially impacted by an OSHA heat illness regulation focus on this important active agency rulemaking.  In fact, long after COVID-19 is a just bad memory in the rearview mirror, a heat illness standard will have lasting and potentially enormous impacts on your organization.

To that end, Conn Maciel Carey LLP is organizing a new fee-based coalition of employers and trade groups to participate in OSHA’s Indoor and Outdoor Heat Illness Rulemaking with a goal of helping to shape any heat standard that OSHA ultimately promulgates in such a way that the rule is palatable to Industry. Continue reading →

Update on Challenges to Federal Contractor Mandate

Eric J. Conn 2 Comments

By Fern Fleischer-Daves

*As of 12/18/21, the federal contractor mandate is currently subject to federal court injunctions. 

While we remain focused on the legal challenges now consolidated at the Sixth Circuit Court of Appeals, quite a lot has been going on with regard to the Federal Contractor Mandate which is facing its own set of challenges.

Did you recently receive a request to amend an existing federal contract? 

If so, you are not alone!  Over the past few weeks, federal administrative agencies have been busy sending emails to tens of thousands of federal contractors seeking to amend existing federal contracts by implementing a COVID-19 vaccination mandate pursuant to guidance issued by the Safer Federal Workforce Taskforce.  These efforts are now being tracked through a new online interactive dashboard reflecting whether or not the 17,000+ contracts currently administered by GSA have been amended.  The contracts in this publicly accessible database are classified as  “Accepted”, “Closed/Cancelled”, or “Pending.”  Meanwhile, federal agency contracting officers are being strongly encouraged to check this database before placing new orders.

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Needless to say, there are potentially serious consequences for a current federal contractor who fails to respond or declines to accept the vaccination mandate.  GSA has warned that company names flagged as “Closed/Cancelled” in this database may be removed or hidden in other federal contracting tools which will make it difficult if not impossible to get any new orders on existing contracts. Recent solicitations for new federal contracts have the clause implementing EO 14042 already included in the terms and conditions.

Employees of federal contractors challenge EO 14042

While several cases have been filed to challenge the President’s authority to mandate vaccinations for federal employees and/or contractors, so far, none have secured a stay of EO 14042.

In Altschuld v. Raimondo, employees of more than a dozen different federal agencies and two unnamed government contractors are challenging both Executive Orders 14042 and 14043.  Last week, Judge Chutkan in the DC Circuit Court held that plaintiffs failed to show irreparable harm, since they had all requested religious exemptions from the vaccination mandate, so they are not entitled to a preliminary injunction.  Explaining further, the Court noted that: Continue reading →

30+ Challenges to OSHA’s Vaccination, Testing, and Face Coverings ETS Consolidated in the Sixth Circuit

Eric J. Conn Leave a comment

By Conn Maciel Carey LLP’s COVID-19 Task Force

Since OSHA published its Vaccinations, Testing, and Face Coverings ETS in the Federal Register 11 days ago, petitioners have filed more than 30 separate lawsuits challenging the legality of the ETS and moving to temporarily and then permanently enjoin implementation of the ETS. The petitioners across these nearly three dozen challenges include more than half the states in the US, numerous private employers, religious groups, the Republican National Committee, and some labor unions (presumably for strategic reasons – to give more liberal courts a chance to take the lead in hearing the litigation).

By judicial procedure, when a legal challenge to an OSHA standard is filed in more than one US Court of Appeals, the US Judicial Panel on Multi-District/Circuit Litigation will respond to a motion by either party in the challenge to consolidate all of the challenges that were filed within 10 days of issuance of the standard, and by way of a true lottery, will assign the consolidated cases to a single circuit court.

Yesterday marked the tenth day since the OSHA ETS was published in the Federal Register, so this morning, (November 16th), the Department of Labor gave notice to the MDL Panel of the numerous petitions for review of a single case filed in each of the 1st, 2nd, 3rd, 5th and 10th Circuits, two cases in each of the 4th and 7th Circuits, three cases in the 9th, 11th, and District of Columbia Circuits, four cases in the 8th Circuit, and five cases in the 6th Circuit.  For those keeping score at home, that’s at least one legal challenge filed in every US Court of Appeals in the country except for the Federal Circuit, which does not have jurisdiction to hear challenges to OSHA standards.  Regardless of the number of challenges filed in any given circuit court, each circuit had one chance in the lottery. Continue reading →

[BREAKING] Fifth Circuit Orders a Stay of OSHA’s COVID-19 Vaccination, Testing, and Face Coverings ETS

Eric J. Conn 6 Comments

By Conn Maciel Carey’s COVID-19 Task Force

Emphasizing that the extraordinary power afforded to OSHA under the emergency provisions of the OSH Act should be delicately exercised, the US Court of Appeals for the Fifth Circuit issued a 22-page opinion late yesterday, November 12th, reaffirming after briefing by both parties the Stay of OSHA’s COVID-19 Vaccination, Testing, and Face Coverings emergency temporary standard (ETS) that it had ordered on November 6th. The Fifth Circuit panel ordered that OSHA may take no further steps to implement or enforce its newly issued ETS until further court order, and thus may not require employees of covered employers to undergo COVID-19 vaccination, take weekly COVID-19 tests, or wear a mask.

Why Did the Fifth Circuit Stay OSHA’s ETS?

Notably, the Fifth Circuit commented in a footnote that debates over the Biden Administration’s vaccine mandate have “roiled the country throughout much of the Fall,” and that the ETS (referred to as “the Mandate” by the three-judge panel) “affects every person in America one way or another.”  Drawing from a variety of sources—including White House Chief of Staff Ronald Klain’s retweet of an MSNBC anchor’s tweet characterizing the ETS as a “workaround” for a federal vaccine mandate, the Court refused to accept the government’s arguments that a sufficient emergency exists justifying a second COVID-focused ETS in less than 6 months.  Indeed, the Court found that prior statements by the Administration “belie the notion that COVID-19 poses the kind of emergency that allows OSHA to take the extreme measure of an ETS.”  To that end, the Court seized on the fact that more than 78% of Americans aged 12 and older are either fully or partially vaccinated and thus face “little risk at all” according to the Administration.

While the November 12 opinion was issued after the Fifth Circuit conducted an “expedited” review, the Court leaves little doubt as to how it will likely rule Continue reading →

[BREAKING] 5th Cir. Temporarily Stays OSHA’s COVID-19 Vaccination, Testing, and Face Coverings Emergency Rule

Eric J. Conn 1 Comment

By Conn Maciel Carey’s COVID-19 Task Force

On Saturday, November 6th, a three-judge panel of the US Court of Appeals for the Fifth Circuit issued a Temporary Restraining Order (TRO) staying the effect of OSHA’s vaccination, testing, and face coverings emergency temporary standard (ETS) that it had promulgated just the day before.  The entirety of the court’s explanation for the stay Order was this:

“Because the petitions give cause to believe there are grave statutory
and constitutional issues with the Mandate, the Mandate is hereby STAYED
pending further action by this court.”

The suit challenging OSHA’s new vaccination, testing, and face coverings ETS was initiated on behalf of a group of private businesses and religious organizations, as well as several states, including Texas, Louisiana, South Carolina, Utah and Mississippi. The petitioners argued that OSHA overstepped its legal authority in issuing an emergency standard to address COVID-19 in US workplaces at this point in the pandemic. The petitioners assert that an emergency stay is necessary because these employers will face workforce shortages if unvaccinated employees quit their jobs in lieu of receiving a COVID-19 vaccination, and the ETS forces them to expend resources to develop and implement written compliance and reporting procedures beyond what the law authorizes under the circumstances.

Specifically, their objections to the OSHA ETS include: Continue reading →

OSHA Issues Its COVID-19 Vaccination, Testing, and Face Coverings Emergency Temporary Standard

Eric J. Conn 18 Comments

By Conn Maciel Carey LLP’s COVID-19 Task Force

At long last, OSHA has revealed its COVID-19 Vaccination and Testing emergency regulation.  The Federal Register site has updated to show the pre-publication package, which is set to run officially in the Federal Register tomorrow, November 5th.  The 490-page package includes the Preamble and economic analysis of the regulation, as well as the regulatory text.  The regulatory text begins on PDF page 473.  Also here is a Fact Sheet about the ETS issued simultaneously by the White House.

We are extremely pleased to report that the rule aligns very well with positions for which CMC’s Employers COVID-19 Prevention Coalition advocated to OSHA and OMB on the most significant topics, like the responsibility for the cost of COVID-19 testing and a delayed implementation date, as well as very narrow record-preservation requirements, grandfathering of prior vaccine-verification efforts, and other elements. OSHA and the White House clearly listened to our views and the compelling rational we put forward for these positions, making the rule a much better, more effective and less burdensome one for employers.

Conn Maciel Carey’s COVID-19 Task Force will be conducting a webinar about the ETS on Wednesday, November 10th at 1:00 PM ET.  Here is a link to register for that program.

In the meantime, below is a detailed summary of the rule:

What is the stated purpose of the regulation?

The ETS is “intended to establish minimum vaccination, vaccination verification, face covering, and testing requirements to address the grave danger of COVID-19 in the workplace, and to preempt inconsistent state and local requirements relating to these issues, including requirements that ban or limit employers’ authority to require vaccination, face covering, or testing, regardless of the number of employees.”

Who is covered?

As the president signaled in his announcement and action plan from September 9, the ETS applies only to employers with 100 or more employees, and the rule does make it explicit that the way you count those employees is on a company–wide basis, not establishment-by-establishment.

Continue reading →

OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard Set to Issue Imminently

Eric J. Conn 6 Comments

By Conn Maciel Carey LLP’s COVID-19 Task Force

OSHA’s COVID-19 Vaccination and Testing emergency temporary standard is expected to be released imminently, likely Wednesday or Thursday of this week.

OMB Has Concluded Its Review of the ETS:

This morning, OMB’s website updated again, but this time, it was not to add more EO 12866 stakeholder meetings to the calendar, it was to declare OMB’s review of the ETS “concluded.”  Here are two screenshots from OMB’s website.  The first shows the list of active DOL rulemakings at OMB for some form of review, and it identifies the status for the COVID-19 vaccination and testing ETS as “Concluded.”

The second one provides a little more detail, including these notes about the ETS:  “Received Date: 10/12/2021” and “Concluded Date: 11/01/2021.”

The Dept. of Labor Gives Some Clues About What to Expect in the ETS:

Additionally, a Department of Labor spokesman shared this statement this morning:

“On November 1, the Office of Management and Budget completed its regulatory review of the emergency temporary standard. The Federal Register will publish the emergency temporary standard in the coming days. [OSHA] has been working expeditiously to develop an emergency temporary standard that covers employers with 100 or more employees, firm- or company-wide, and provides options for compliance…. Covered employers must develop, implement, and enforce a mandatory COVID-19 vaccination policy, unless they adopt a policy requiring employees to choose either to get vaccinated or to undergo regular COVID-19 testing and wear a face covering at work. The ETS also requires employers to provide paid time to workers to get vaccinated and paid sick leave to recover from any side effects.”

The DOL statement provides some useful insight about what will be in the final rule and when we will see it.  First, OSHA did stick with the 100-employee threshold that the President identified in his announcement and new COVID-19 Action Plan from September 9th.  There was always a chance that OSHA would  scrapped that employee-count trigger as they wrote the rule and instead made it apply to everyone.  We also see in this DOL statement that, as expected, the 100-employee count will be Continue reading →

As OSHA Finalizes Its Vaccination ETS, the EEOC Updates Guidance on Religious Exemptions to Vaccine-Mandates

Eric J. Conn 1 Comment

By Conn Maciel Carey LLP’s COVID-19 Task Force

Earlier this week, the EEOC finally updated its guidance on Title VII and Religious Objections to COVID-19 Vaccine Mandates, which will impact how employers will implement their various vaccination, testing, and masking requirements.

US law has long-recognized an exemption from mandatory work policies (including vaccine-mandates) based on sincerely held religious beliefs, pursuant to Title VII of the Civil Rights Act of 1964 (and equivalent state statutes). For employers, evaluating religious exemption requests can be tricky (certainly trickier than requests for medical/disability-based exemptions), as there is often no readily verifiable evidence to help ascertain whether an employee’s religious objection to the work policy is a sincerely held religious belief (or even a religious belief at all). Indeed, although it is permissible to attempt to obtain a supporting statement from a religious leader or another member of their community who is familiar with the employee’s belief system, and employee is not required to provide such a statement, as they may not be affiliated with an organized religion. Furthermore, as an end-around to COVID-19 vaccine-mandates, many employees nationwide are attempting to seek a religious exemption when their actual objections are really based in political, ethical, or personal beliefs.

In response to requests from the regulated community, the EEOC has attempted to provide more clarity so that employers can have more confidence in implementing their accommodations process, and in many instances, to push back on suspect claims by employees of the need for a religious exemption. The guidance does offer some useful tools for employers, but unfortunately, it is not as helpful as we had hoped it might be.

The theme of the EEOC’s updated guidance is that employers must make an individualized evaluation of each employee’s request for a religious accommodation. The EEOC renewed Continue reading →