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 If the measure is in fact repealed after the final Board vote, then Virginia employers would no longer have to require employees who work indoors to wear a face covering,; social distance;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 →
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:
New cases per capita (as with the prior guidelines; but also
New COVID-19 related hospital admissions; and
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.
In Western Growers Association, et al, v. Occupational Safety and Health Standards Board, et al, the California appellate court recently affirmed the lower court’s decision denying a challenge to Cal/OSHA’s COVID-19 Emergency Temporary Standard (ETS). This decision has far-reaching implications, affording considerable deference to the California Occupational Safety and Health Standards Board’s (Board) rulemaking process and authority to bypass regular rulemaking with emergency temporary standards supported by its own “declaration of emergency.” The Board – which is tasked with promulgating workplace safety rules – has had an oversized role during the COVID-19 pandemic.
As background, the Board’s COVID-19 ETS was approved, effective November 30, 2020, over the recommendation of Board staff finding that “Cal/OSHA’s limited resources should continue to be focused on enforcement and consultation outreach specifically targeted at employers and sectors of the economy with deficient COVID-19 protections,” as this is likely to be more effective than new rulemaking. Since then Cal/OSHA’s ETS has undergone numerous revisions, being “re-adopted” effective June 17, 2021 and then again on January 14, 2022. The regulation has been a moving target for employers, with the Board each time adopting modified text followed by updated FAQs .
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 →
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 provided a detailed analysis of this latest development and answered key questions including: Continue reading →
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 →
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
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):
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 →
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.