Dear Clients and Friends:
Welcome to our Friday Five Newsletter, where we share the Top Five Things You Need to Know This Week to Protect Your Work Community™ (in particular with respect to COVID-19) and help it thrive. Below are recent developments in the law, or questions that we find ourselves answering a lot. As always, please reach out with any questions, we are here for you. And if you are curious about our prior Friday Five or other Newsletters, you will find them here.
(1) The Fifth Circuit Has Stayed the Implementation of OSHA's Recent ETS on Mandatory Vaccination and Testing
As you know from our November 5, 2021 Friday Five, last week the federal Occupational Health and Safety Administration (“OSHA”) released an Emergency Temporary Standard (“ETS”) implementing President Biden's September 9, 2021 Executive Order mandating vaccines or testing at employers with 100 or more employees.
Just as you were absorbing the news from our last Newsletter, over the weekend the Fifth Circuit Court of Appeals issued an order staying the ETS, and stated an intention to issue an order on a motion for permanent injunction in the coming days or weeks. The decision temporarily blocked OSHA from enforcing the new ETS requirements, arguably in any state. There are similar challenges pending in five other circuit courts.
In response to the pending cases, the Department of Labor has invoked a procedure (who knew?) according to which all the federal petitions for review pending in the various circuits will be consolidated before a single court, which will be selected by a lottery. Literally. The circuits will go in a hat, and the circuit drawn randomly from the hat will be the circuit in which the matter is decided. OK, there may not be a hat, but the concept remains. Each circuit gets one entry, regardless of the number of petitions filed in the district. The lottery is expected to take place on November 16.
The application of the ETS could be tied up in the courts for a while, and its enforceability ultimately may be decided by the U.S. Supreme Court.
What Should Employers Do While the Matter is Pending?
The likely outcome of next steps is uncertain: whether the selected circuit court will grant the permanent injunction (which could depend on the make up of that judiciary in that circuit), whether the Biden Administration would appeal a permanent injunction (we can safely say that is a likely outcome in the event of a permanent injunction), whether the U.S. Supreme Court would hear the matter, and the outcome if it does so (impossible to predict). A reversal of the current or a future injunction could happen quickly and without warning. We also cannot predict whether OSHA would be forgiving to companies who are delayed in implementing the ETS while awaiting a final court ruling. If OSHA is not forgiving, companies that fail to meet the ETS compliance deadlines could face penalties and citations.
The most conservative course of action is to familiarize yourself with the ETS requirements and begin preparing to implement those requirements if the stay is lifted. That will prevent you from needing to scramble to come into compliance in the event the ETS is reinstated, along with the present timeline.
The earliest effective date for any of the ETS requirements is December 5, 2021, which includes the requirement that employers have a vaccination policy and various other technical standards in place. These materials should be developed in the interim and the company should be poised to implement the program the ETS ultimately be upheld.
We have developed required and recommended materials for ETS compliance, and are happy to help you tailor those to your unique workplace. Please reach out and we can help developing your program.
(2) What About California's ETS?
Cal/OSHA’s ETS is required to be modified to be consistent with the OSHA ETS within 30 days of the adoption of OSHA’s ETS (by December 5). In light of the above uncertainty with respect to the OSHA ETS, the Cal/OSHA advisory board will discuss proposed changes on November 18, 2021. They will publish an updated proposed draft “as soon as feasible.”
(3) The Deadline for Compliance with the Federal Contractor Vaccination Rules Has Been Extended.
As you will remember from our October 30, 2021 Newsletter, on September 24, 2021 the Safer Federal Workforce Task Force (“the Task Force”) issued guidance ("the Guidance") for federal contractors and subcontractors on the topic of vaccines and safety. And as outlined in last week's Newsletter, on November 10, 2021, the Task Force issued updated Guidance and FAQs. The Guidelines included a requirement that covered contractor and subcontractor employees be fully vaccinated on or before December 8, 2021. Updated Guidance from the Task Force issued on November 10, 2021 includes an extension of that deadline to providing no later than January 18, 2022.
(4) The Task Force Also Issued New and Updated FAQ for the Federal Contractor Guidance.
- There is sample signage that contractors and subcontractors can post at entrances to describe the safety requirements for their worksites.
- The FAQ were updated to incorporate recent CDC recommendations on safety precautions to be taken when employees are allowed to delay vaccinations. Specifically, during that period of delay a covered employee must follow applicable masking and physical distancing protocols for not fully vaccinated individuals. And in some cases, an agency may determine that the nature of a covered contractor employee’s responsibilities are such that no safety protocol other than vaccination is adequate, in which case the employees are unable to perform the requisite work at the Federal workplace.
- The Task Force clarified that the Guidance applies to all covered contractor employees working at all contractor or subcontractor workplace locations (as opposed to working at home or at the contractor/subcontractor’s facility where no employees of a covered contractor are present), and contractors may be required to comply with additional workplace safety requirements imposed by individual federal agencies at specific federal buildings and installations.
(5) Happy Friday! There is no #5 (you got an extra last week, so we are averaging things).
Stay tuned for some news other than COVID-19: Next week we will be sending a Save the Date for our Year End Briefing and some tips for preparing for the new year.
We Are Here For You
We hope this information is helpful as you navigate the recent developments and constantly changing laws. Please stay tuned, we will continue keeping you updated. And please, reach out if you have questions or just want to talk!