Vaccinate-or-Test

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

Eric J. Conn Leave a comment

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  In OSHA’s other big announcement today, the agency indicated that it has not withdrawn that rulemaking.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 →

OSHA COVID-19 Regulation and Enforcement Post-Supreme Court [Webinar Recording]

Theresa Jordan Leave a comment

On Thursday, January 20, 2022 we hosted a special bonus event in Conn Maciel Carey’s 2022 OSHA Webinar Series in the form of a panel webinar program regarding OSHA COVID-19 Regulation and Enforcement After the Supreme Court Stayed the Vaccinate-or-Test ETS.

Presented by
Conn Maciel Carey LLP with Special Guests
Neal Katyal and Jordan Barab

In this exclusive, bonus program we facilitated a panel discussion regarding the Supreme Court’s recent decision to stay OSHA’s Vaccinate-or-Test emergency temporary standard, what that decision means for employers in fed OSHA and State OSH Plan states, and how OSHA will address the COVID-19 hazard in the workplace moving forward.

We would like to extend our gratitude to our remarkable cast of panelists for participating in this event:

  • Neal Katyal – former Acting Solicitor General of the United States and leading Constitutional Law expert; Partner at Hogan Lovells and Professor of Law at Georgetown University Law Center
  • Jordan Barab – President Obama’s Deputy Assistant Secretary of Labor for OSHA and Acting Head of OSHA; former Sr. Policy Advisor to the US House Education and Labor Committee
  • Moderated by Eric J. Conn, Chair, Conn Maciel Carey LLP’s national OSHA Practice Group

The Supreme Court has spoken, and OSHA’s Vaccination, Testing and Face Coverings Emergency Temporary Standard is once again subject to a nationwide judicial stay.  The conservative majority on the Court reasoned that the 50-year old OSH Act does not include an explicit-enough delegation of authority from the US Congress for OSHA to issue a regulation that addresses an issue that is not unique to the workplace and which is of such great economic and social significance. Shortly after the Supreme Court issued its decision, Secretary of Labor Marty Walsh announced that “OSHA will do everything in its existing authority to hold businesses accountable for protecting workers, including under the COVID-19 National Emphasis Program and General Duty Clause.”

So, the big question facing employers now is what are the potential regulatory pitfalls from unwinding or stopping the implementation of any of their COVID-19 prevention and/or vaccination policies developed either in response to OSHA’s Vaccinate-or-Test ETS or more general efforts to keep up with CDC recommendations and/or protect against OSHA General Duty Clause citations?  Or said another way, without the COVID-19 emergency standards, what does OSHA expect from employers on the COVID-19 front to avoid enforcement?

Our panel of experts reviewed: 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 →

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 →