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
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
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
Cal/OSHA has just convened an Advisory Committee to consider a proposed permanent Cal/OSHA COVID-19 prevention permanent rule, scheduled to meet on September 23, 2021. Conn Maciel Carey has been invited to serve on the Advisory Committee, on behalf of the California Employers COVID-19 Prevention Coalition – composed of a broad array of California and national employers substantially impacted by Cal/OSHA’s COVID-19 standards.
Last Friday, the Division of Occupational Safety and Health (DOSH) posted the attached discussion draft for the proposed permanent rule. If adopted, the permanent rule would expire in 2 years (subject to renewal/amendment) and replace the existing Cal/OSHA COVID-19 Emergency Temporary Standard (ETS). We expect that upon the permanent rule sunsetting, the Cal/OSHA Standards Board might take up a permanent general infectious disease standard – which would be another battle to be waged. There is a broad consensus among the employer community that a general infectious disease standard is unnecessary and ill advised, in light of the existing Injury and Illness Prevention Program (IIPP) and Aerosol Transmissible Diseases standards and the inability to prescribe specific measures to address pandemics that have yet to arise.
As many may recall, the ETS was hurriedly adopted around Thanksgiving last year and then amended in June 2021 following bizarre twists and turns, with the Standards Board reconsidering proposed text and votes faced with concerns the draft amendment was not aligned with CDC guidance and was otherwise unwieldy. Ultimately, the Standards Board formed a subcommittee to consider the future of the ETS that has met regularly since June.
Big picture, the draft permanent rule is largely a significant improvement over the ETS but there are some areas of concern that we hope are addressed through the Advisory Committee process. We have summarized how the draft permanent rule materially departs from the ETS: Continue reading