Conn Maciel Carey LLP with Special Guests Neal Katyal and Jordan Barab
In this exclusive, bonus program we will facilitate 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 are especially excited to be hosting a remarkable cast of panelists for 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
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? Continue reading →
On December 19, 2021, Mayor Bill de Blasio and the New York City Commissioner of Health and Mental Hygiene issued a private employer vaccine mandate which requires workers in New York City who perform in-person work or interact with the public for work to provide proof of vaccination before entering the workplace. The mandate did not provide much of a runway for employers to come into compliance, as employers had to make sure employees received their first vaccine dose by December 27th – just eleven days from the announcement.
It is also important to remember that all New York employers remain subject to the NY HERO Act, which requires employers to implement a written airborne infectious disease plan and certain exposure controls whenever the Health Commissioner declares a public health emergency involving an airborne infectious disease.
During this webinar, we will provide a detailed analysis of this latest development and answer key questions including: Continue reading →
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. There was also a concurrence by Justice Gorsuch (joined by Justices Thomas and Alito), and a joint dissent by Justices Breyer, Sotomayor, and Kagan.
At first blush, it appears that the majority of the Court is saying that without a more explicit delegation of authority from Congress, OSHA can only regulate hazards that are fairly unique to the workplace, which 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.”
Announcing Conn Maciel Carey’s 2022 Labor and Employment Webinar Series
The legal landscape facing employers seems as difficult to navigate as it has ever been. Keeping track of the ever-changing patchwork of federal, state and local laws governing the workplace may often seem like a full-time job whether you are a human resources professional, in-house attorney or business owner. Change appears to be the one constant. As we enter Year 2 of President Biden’s Administration, employers will continue to closely track the changes taking place at the NLRB, the DOL and the EEOC. At the same time, a number of states will continue introducing new laws and regulations governing workplaces across the country, making it more important than ever for employers to pay attention to the bills pending in the legislatures of the states where they operate.
To register for an individual webinar in the series, click on the link in the program description below. To register for the entire 2022 series, click here to send us an email request, and we will register you. If you missed any of our programs from the past seven years of our annual Labor and Employment Webinar Series, here is a link to an archive of recordings of those webinars.
2022 Labor and Employment Webinar Series – Program Schedule
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.
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):
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. Continue reading →
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), 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 →
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 vaccine 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).
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.