How Did We Get Here?

OSHA published its ETS on November 4, 2021. Almost immediately thereafter, several states, employers, and nonprofit organizations challenged its enforceability, and the Fifth Circuit Court of Appeals initially issued a stay of enforcement and implementation of OSHA’s vaccination/testing mandates.

However, because many different parties challenged OSHA’s ETS in many different federal courts, a special judicial panel consolidated the cases and selected the Sixth Circuit Court of Appeals—via a lottery system—to hear them all. On December 17, 2021, the Sixth Circuit lifted the Fifth Circuit’s stay.

Multiple parties immediately challenged the Sixth Circuit’s decision by filing petitions with the Supreme Court. On January 13, 2022, the Supreme Court issued its decision staying implementation of the ETS until the Sixth Circuit reaches a final conclusion on the enforceability of OSHA’s ETS.

What Was the Supreme Court Rationale?

The Supreme Court’s majority opinion concluded that (1) the parties challenging OSHA’s ETS were likely to succeed on the merits and that (2) OSHA’s enforcement of the ETS must be placed on hold until the Sixth Circuit reached a final decision on the merits.

In coming to this conclusion, the Supreme Court noted that Congress created OSHA when it passed the Occupational Safety and Health Act of 1970 (the “Act”). Therefore, OSHA only has those powers that Congress expressly provided for in the Act.

According to the Supreme Court’s ruling, the Act only permits OSHA to regulate matters of workplace/occupational safety. Although COVD-19 impacts the workplace, it is not a workplace-specific risk. Instead, it is a disease that spreads everywhere including in schools, at sporting events, and any other place where people gather. In other words, COVID-19 is a general health risk—not just an occupational risk—and it reaches areas that fall outside OSHA’s area of expertise.

As the Supreme Court put it: “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.”

Justices John Roberts, Amy Coney Barrett, and Brett Kavanaugh issued the Supreme Court’s decision, and Justices Samuel Alito, Neil Gorsuch, and Clarence Thomas authored a concurring opinion.

The liberal wing of the Supreme Court—consisting of Justices Sonia Sotomayor, Stephen Breyer, and Elena Kagan—dissented. The dissenting justices indicated that the Act demands OSHA to issue emergency temporary regulations when (1) “employees are exposed to grave danger…from new hazards” and (2) an “emergency standard is necessary to protect employees from such danger.”

Noting that COVID-19 constitutes a new hazard that poses a grave danger to millions of employees and noting that tests, face coverings, and vaccinations serve as proven methods to address that danger, the dissenting justices opined that the Act actually requires OSHA to issue regulations related to COVID-19 and the workplace.

What Comes Next?

The Supreme Court’s decision is not the final word on this matter. Instead, it merely stays implementation/enforcement of the ETS until the Sixth Circuit can fully review challenges to the ETS.

The Supreme Court did opine, however, that the parties challenging the ETS were likely to prevail. For this reason, OSHA may—in an effort to address the Supreme Court’s concerns about the extent of the agency’s powers—issue a more narrow/limited set of workplace COVID-19 regulations.

More Insight from McCarthy Lebit on the “Vaccine Mandate”

Ann-Marie Ahern & Jack Moran Discuss President Biden’s Vaccine Mandate

Listen to Employment Litigators Ann-Marie Ahern and Jack Moran from a recent episode of our podcast – The More Report, Podcast Edition – as they discuss the viability of the “vaccine mandate” in the face of probable legal challenges.

Sixth Circuit’s Reversal of Fifth Circuit’s Stay of OSHA ETS

Check out the previous legal advisory from Frank George, published on December 22, 2021, to read more about details, highlights, and updates on OSHA’s ETS.

OSHA Releases COVID-19 Vaccine Rules but U.S. 5th Circuit Blocks Them

Check out the previous legal advisory from Frank George, published on November 9, 2021, to read more about details, highlights, and updates on OSHA’s ETS.

The post LEGAL ADVISORY: Supreme Court Blocks Enforcement of OSHA ETS appeared first on McCarthy Lebit - A Cleveland/Ohio Law Firm.

Although enforcement of the ETS was briefly stayed/suspended, the Sixth Circuit Court of Appeals dissolved the stay on December 17, 2021, and OSHA has published a new compliance deadline of January 10, 2022.

A Brief Recap of Legal Challenges to the ETS

OSHA issued its ETS on November 4, 2021. Almost immediately thereafter, several states and employers challenged its enforceability, and by November 12, the Fifth Circuit Court of Appeals had issued a stay of enforcement and implementation of OSHA’s vaccination/testing mandates.

Because many different parties challenged OSHA’s ETS in many different federal courts, a special judicial panel consolidated the cases and selected one federal appellate court—via a lottery system—to hear them all. The Sixth Circuit Court of Appeals won this lottery on November 16, 2021.

Then, on November 23, 2021, OSHA filed a motion with the Sixth Circuit requesting that it dissolve the stay issued by the Fifth Circuit. And, last Friday, the Sixth Circuit found in OSHA’s favor.

In reaching this conclusion, the Sixth Circuit reasoned that OSHA has the authority to regulate viruses and infectious diseases that create risks in the workplace. It further reasoned that OSHA’s ETS was enforceable, given that the agency stated sufficient justifications to conclude that COVID-19 posed a grave danger to employees.

OSHA’s Newly Published Compliance Deadlines

After the Sixth Circuit’s decision, OSHA published new compliance deadlines on its website.

The ETS generally requires employers to either institute a mandatory vaccination policy or implement weekly COVID-19 testing for unvaccinated employees. As of now, employers who intend to mandate vaccines must comply with the ETS by January 10, 2022, while employers who opt to test unvaccinated employees must comply by February 9, 2022.

It must be noted, however, that multiple parties have already challenged the Sixth Circuit’s decision by filing petitions with the Supreme Court of the United States. It is widely expected that the Supreme Court will take action by January 10, 2022, so as to provide clarity before the ETS’ current compliance deadlines.

Businesses Should Take Action and Prepare to Comply with the ETS

The Supreme Court has not rendered a final decision with respect to the ETS’ enforceability. As it currently stands, though, businesses are required to take near immediate action to comply with OSHA’s vaccination/testing mandates.

Businesses should know that the ETS requires employers to implement a mandatory vaccination policy, unless employers instead enforce a mandatory weekly COVID-19 testing requirement for unvaccinated employees. The ETS also requires businesses to maintain proof of employees’ vaccination status, provide employees paid time to receive the vaccine, implement face-covering policies for unvaccinated workers, and distribute information regarding the ETS to employees.

If your business employs at least 100 employees, McCarthy Lebit encourages you to contact our office for advice and counsel regarding your compliance with these regulations.

Update (12/23/2021): SCOTUS Agrees to Fast Track Legal Challenges to OSHA ETA

The Supreme Court of the United States announced Wednesday evening that it will hear oral arguments in cases appealing the legality of OSHA’s ETS on January 7 — a surprise expedited process that could signal the Court’s intention to act quickly to resolve the legal challenges. For the moment, the OSHA rule (and the subsequent guidance on revised compliance deadlines) remains in effect, as SCOTUS has not made any move to stay the rule, pending its own judicial review. It is not clear whether the Justices will accept any motions to reinstate the Fifth Circuit’s stay of the rule, so employers would be wise to continue making plans for compliance ahead of the January 10 deadline.

More Insight from McCarthy Lebit on the “Vaccine Mandate”

Ann-Marie Ahern & Jack Moran Discuss President Biden’s Vaccine Mandate

Listen to Employment Litigators Ann-Marie Ahern and Jack Moran from a recent episode of our podcast – The More Report, Podcast Edition – as they discuss the viability of the “vaccine mandate” in the face of probable legal challenges.

LEGAL ADVISORY: OSHA Releases COVID-19 Vaccine Rules but U.S. 5th Circuit Blocks Them

Check out Frank George‘s previous legal advisory for more details, highlights, and updates on OSHA’s ETS.

The post LEGAL ADVISORY: Sixth Circuit’s Reversal of Fifth Circuit’s Stay of OSHA ETS appeared first on McCarthy Lebit - A Cleveland/Ohio Law Firm.

First, an employer is permitted to know an employee’s vaccination status. There is nothing legally improper about that inquiry. Second, earlier this month, the Occupational Safety and Health Administration (OSHA) issued an emergency temporary standard (ETS), generally requiring businesses with 100 or more employees to implement a mandatory vaccination policy that incudes maintaining proof of employees’ vaccination status. Thus, for many employers, they may already have, or will start to have, evidence of vaccination status on file for their employees.

Also, most employers have policies regarding truth and honesty, particularly with respect to documents and information submitted to the company. If an employer doesn’t have such a policy, it should adopt one as soon as possible. If an employer learns that an employee has been dishonest in its dealings with the company, that alone is often grounds for termination.

The only complexity comes from if an employee asks for a medical or religious accommodation upon being confronted with the dishonesty. An employer does not have to excuse a violation of conduct rules that are job-related and consistent with business necessity, even if that violation is related to an accommodation request. For that reason, documenting a discipline or termination decision and when it was made (after discovering the dishonesty but before the employee requested the accommodation) can be important.

Of course, the employer need not impose such a harsh penalty. It is unlikely, for example, that the Green Bay Packers will terminate Aaron Rodgers – he is the quintessential “key” employee for the organization. Employers should bear in mind, however, that if they do not terminate one employee for such dishonesty regarding their vaccination status, it may make it more difficult to justify future terminations on similar grounds for other employees.

NOTE: On Wednesday, The NFL fined the Green Bay Packers organization $300,000 for its part in not properly enforcing safety protocols, including permitting Rodgers to attend practice and team meetings maskless. The NFL also warned that future violations could result in more severe punishment, including lowered or lost draft picks. Meanwhile, the NFL also fined Aaron Rodgers and Packers wide receiver Allan Lazard $15,000 each for breaking league protocols by going to a Halloween party, despite being unvaccinated.

More thought leadership about vaccine “mandates” and the OSHA ETS

LEGAL ADVISORY: OSHA Releases COVID-19 Vaccine Rules but U.S. 5th Circuit Blocks Them

Employment Law Associate Frank George breaks down the OSHA ETS for private employers and the resulting legal challenges that have lead to an injunction blocking implementation and enforcement since OSHA announced the new rules

Ann-Marie Ahern & Jack Moran Discuss President Biden’s Vaccine Mandate

Jack Moran an Ann-Marie Ahern made an appearance on The More Report, Podcast Edition, to discuss President Biden’s “vaccine mandate.”  Listen to Jack and Ann-Marie discuss the legal challenges that the administration is likely to face if implement this policy.

The post Key Takeaways for Employers After Aaron Rodgers’ Misleading Comments About His Vaccination Status appeared first on McCarthy Lebit - A Cleveland/Ohio Law Firm.

On November 4, 2021, the Occupational Safety and Health Administration (OSHA) issued an emergency temporary standard (ETS), which applies to most businesses with 100 or more employees and introduces COVID-19 rules. These newly issued federal regulations require many employers to maintain mandatory vaccination and/or testing policies.

OSHA’s ETS became effective immediately upon its issuance, but covered employers are afforded 30 days to develop a mandatory vaccination policy and 60 days to comply with testing requirements. If your business employs at least 100 employees, McCarthy Lebit encourages you to contact our office for advice and counsel regarding these regulations. Read the full text of the rules here.

Highlights from the OSHA COVID-19 ETS

• OSHA has determined that unvaccinated workers face serious danger, that vaccinations and/or regular COVID-19 tests are necessary measures to take in order to protect against this danger, and that employers with 100 or more employees have the administrative capacity to implement vaccination and/or testing policies.
• The ETS requires employers to implement a mandatory vaccination policy, unless employers instead enforce a mandatory weekly COVID-19 testing requirement for unvaccinated employees.
• Among other things, the ETS also requires businesses to:
  • Maintain proof of employees’ vaccination status;
  • Provide employees paid time to receive the vaccine and recover from any side effects;
  • Implement mandatory face-covering policies for unvaccinated workers; and
  • Distribute information regarding the ETS to employees.

Because businesses are expected take immediate action to comply with OSHA’s newly issued ETS, contact McCarthy Lebit as soon as possible for more information.

U.S. Fifth Circuit: Not So Fast!

It took just a day-and-a-half for OSHA’s ETS to be blocked by a federal appeals court. On Saturday, November 5, a 3-judge panel from the U.S. Court of Appeals for the Fifth Circuit granted an emergency stay of the OSHA requirement that workers be vaccinated by Jan. 4 or face mask requirements and weekly tests.

In response to the ETS, more than two dozen states, businesses, business groups and religious organizations have sued, calling the rule issued by the Occupational Health and Safety Administration an overreach of government authority, with most arguing that OSHA lacks the legal standing to issue a rule in response to a society-wide health concern, and even if reducing the risk of COVID-19 “remains a compelling interest,” it is not necessarily a “grave danger” as OSHA has declared it to be. The plaintiffs also questioned the timing of the rule, coming more than a year-and-a-half into the pandemic, when many employers have already implemented safety measures and COVID cases are falling.

In issuing a stay on Saturday, the 5th Circuit Court of Appeals, based in New Orleans, said the petitions “give cause to believe there are grave statutory and constitutional issues with the Mandate.”

Biden Administration Response Late Monday

In an expedited reply to the motion for a permanent injunction Monday, Biden administration officials warned that maintaining the stay “would endanger many thousands of people,” as the death toll from COVID continues to hover around 1,300 people per day nationally.

“With the reopening of workplaces and the emergence of the highly transmissible Delta variant, the threat to workers is ongoing and overwhelming,” the administration argued, while dismissing the legal objections that led to the stay as lacking merit. In fact, the White House is urging companies to ignore the stay and continue implementing rule compliance.

What’s Next For the Legal Challenges?

Because there are challenges to the OSHA rule in multiple circuit courts — including the 5th, 6th, 7th, 8th, 11th and D.C. Circuits, federal law dictates that the cases be consolidated and heard by one federal appeals court, chosen by lottery. That lottery could take place on or around Nov. 16, according to the U.S. Department of Justice. Ultimately, the case could end up at the Supreme Court. Meanwhile, petitioners in the Fifth Circuit Case have until 5pm Tuesday, November 9 to file a reply to the government’s response.

UPDATE (11/12/2021): Fifth Circuit Stays Biden Mandate

On Friday, November 12, the Fifth Circuit Court of Appeals agreed to issue a stay of enforcement and implementation of the OSHA’s ETS.  In their 22-page opinion and ruling, the Court made reference to several reasons why the ETS should be stayed pending additional review, including suggesting that the ETS was unconstitutional under the Commerce Clause and non-delegation doctrine. Even if the ETS could survive a constitutional challenge, the court went on to hold that COVID-19 was not the proper subject of emergency administrative action by OSHA. Pending further review, this ruling effectively invalidates the ETS, since OSHA is now barred from implementing or enforcing the standard.

UPDATE (11/16/2021):  Six Circuit Wins Lottery to Hear Consolidated Challenge to OSHA ETS

The U.S. Judicial Panel on Multidistrict Litigation held a lottery on November 16 that named the Sixth Circuit Court of Appeals, an overwhelmingly  conservative court (11 of 16 sitting Judges were appointed by Republicans), will take up the 34 lawsuits now consolidated into one case.  The Court has not yet scheduled oral arguments or assigned judges who will hear the cases, though at least one challenger has filed for en banc consideration by the Court – meaning the entire bench of 16 judges would hear the cases.

It is not immediately clear whether the transfer of the cases will override the injunction issued by the Fifth Circuit. Still, because the ETS is not scheduled to go into effect until January 4, 2022, there is no change to existing policy at this time.

Update (11/17/2021): OSHA Suspends Enforcement of ETS Pending Judicial Review 

In perhaps the first sign by the Biden administration that they may not emerge victorious from the mounting legal challenges to the ETS after the 6th Circuit Court of Appeals was awarded the consolidated legal challenges via a lottery of the courts conducted by the Department of Justice, OSHA has announced they are officially suspending enforcement of the ETS pending further judicial review.

What Can/Should You Do Next?

As with all things COVID, uncertainty is the only certainty today.  Employers should stay up to date on litigation developments and continue to prepare themselves for the possibility of the ETS going into effect in the near future. Essentially, employers should continue preparing final vaccination policies, compliance policies, communications plans, and a process to track and store confidential details about an employees’ vaccination status.

That said, federal contractors and healthcare employers should continue to comply with their separate federal COVID-19 requirements, which have not been stayed in the OSHA ETS litigation.  If you’re in doubt about where your business falls, please reach out to any of our employment law attorneys for a consultation.

More Insight from McCarthy Lebit on the “Vaccine Mandate”

Ann-Marie Ahern & Jack Moran Discuss President Biden’s Vaccine Mandate

Listen to Employment Litigators Ann-Marie Ahern and Jack Moran from a recent episode of our podcast – The More Report, Podcast Edition – as they discuss the viability of the “vaccine mandate” in the face of probable legal challenges.

The post LEGAL ADVISORY: OSHA Releases COVID-19 Vaccine Rules but U.S. 5th Circuit Blocks Them appeared first on McCarthy Lebit - A Cleveland/Ohio Law Firm.