Tag: OSHA

Today, January 13, 2022 the U.S. Supreme Court issued two significant rulings regarding two of the federal COVID-19 vaccine mandates. First, the Supreme Court stayed the Federal Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS) on COVID-19 for employers with 100 or more employees. This means the ETS is no longer in effect at this time, and employers are not under an obligation to comply with its requirements.

Second, the Court granted the federal government’s request that the preliminary injunctions blocking the Healthcare Centers for Medicare & Medicaid Services (CMS) Interim Final Rule (the “CMS Rule”) in certain states be lifted. This means CMS is allowed to move forward with its rule for healthcare workers nationwide, and that covered employers must comply with the CMS Rule.

The following is an update on the impact of the Supreme Court’s rulings for each rule.

OSHA ETS

As previously reported, the Supreme Court held an emergency hearing on January 7, 2022 regarding a judicial stay of OSHA’s ETS on COVID-19 for employers with 100 or more employees. Today, the Supreme Court ruled in favor of petitioners granting the judicial stay by a 6 –3 vote, with Justices Roberts, Thomas, Alito, Gorsuch, Kavanaugh, and Barrett voting in favor and Justices Breyer, Sotomayor, and Kagan dissenting.^[1]

As a result, enforcement of OSHA’s ETS has been halted pending the disposition of the case in the United States Court of Appeals for the Sixth Circuit.

According to the Supreme Court’s ruling, the petitioners “are likely to prevail” on the merits of their case in front of the Sixth Circuit because COVID-19 impacts all areas of life and not just the workplace. The Supreme Court stated that “[p]ermitting 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.”

While the Supreme Court acknowledged that OSHA has some authority to regulate occupation-specific risks related to COVID-19, it does not have such authority when OSHA takes an “indiscriminate approach” and “fails to account for” the crucial distinction between occupational risk and risk more generally.

The Supreme Court’s ruling today means that the ETS is stayed nationwide and that the vaccine and testing requirements for employers with 100 or more employees are blocked from taking effect. While this ruling is not the final decision of the case, such rulings are an indication of how the Supreme Court may ultimately decide should the case appear again in front of the Court. We will continue to monitor whether OSHA continues its efforts to defend the ETS after today’s ruling.

Healthcare Employers: CMS Interim Final Rule

As previously reported, the Supreme Court also held an emergency hearing on January 7, 2022 regarding the U.S. government’s request to issue a stay of the preliminary injunctions that are currently preventing the CMS Rule from taking effect in 25 states.

Today, the Supreme Court ruled in favor of the U.S. government, granting the judicial stay by a 5 – 4 vote, with Justices Roberts, Breyer, Sotomayor, Kagan, and Kavanaugh voting in favor and Justices Thomas, Alito, Gorsuch, and Barrett dissenting.^[2]

According to the Supreme Court, the “challenges posed by a global pandemic do not allow a federal agency to exercise power that Congress has not conferred upon it.” However, “[a]t the same time, such unprecedented circumstances provide no grounds for limiting the exercise of authorities [an] agency has long been recognized to have.”

Here, the Supreme Court found that the CMS Rule fell within the authority that Congress had conferred on the Secretary of the Health and Human Services agency. Specifically, the Court stated that Congress has authorized the Secretary of Health and Human Services to “impose conditions on the receipt of Medicaid and Medicare funds” which are “necessary in the interest of the health and safety of individuals who are furnished services.” The Court noted that “COVID-19 is a highly contagious, dangerous, and – especially for Medicare and Medicaid patients – deadly disease.”

The Supreme Court’s ruling today means that the injunctions by the lower federal courts are lifted and the CMS Rule is in effect nationwide. We will have to wait and see if CMS issues any guidance for its compliance dates following the Court’s ruling.

Please contact your Varnum attorney, or any member of the firm’s labor and employment practice team, with questions about how this change will affect your workforce.

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^{[1] National Federation of Independent Business, et al., v. Dep’t of Labor and OSHA, et al. and Ohio, et al. v. Dep’t of Labor and OSHA, et al.
[2] Joseph R. Biden, Jr., President of the United States, et al. v. Missouri, et al. and Xavier Becerra, Secretary of Health and Human Services, et al., v. Louisiana, et al.}

UPDATE: US Supreme Court Halts Federal Vaccination Mandate for Employers, but Permits CMS Rule to Take Effect

Today, January 10, 2022, the Federal Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS) on COVID-19 for employers with 100 or more employees takes effect. Although many had anticipated that the U.S. Supreme Court might rule on the legality of the OSHA ETS prior to today, the Court’s failure to do so means that covered employers should be prepared to comply. A full discussion of the ETS’s requirements is available in our previous advisory: Here We Go Again: Sixth Circuit Lifts Stay of OSHA COVID-19 ETS for Employers With 100 or More Employees. Additional guidance from MIOSHA late last week suggests that covered employers in Michigan may have an additional two-week period, until January 24, 2022, to come into full compliance.

Background

On Friday, January 7, 2022 the Supreme Court heard expedited oral arguments regarding judicial stays facing two federal vaccine mandates concerning COVID-19: OSHA’s ETS on COVID-19 for employers with 100 or more employees and the Healthcare Centers for Medicare & Medicaid Services (CMS) Interim Final Rule (the “CMS Rule”) covering certain health care providers.

While many had anticipated some sort of preliminary ruling or even a stay of one or both mandates by today, as of the time this advisory was published there had been no ruling on either issue from the Supreme Court.

OSHA ETS and Recent MIOSHA Action

As previously reported, the U.S. Court of Appeals for the Sixth Circuit recently lifted a judicial stay that had previously prevented the implementation of OSHA’s ETS for employers with 100 or more employees. OSHA responded to this ruling by issuing new compliance dates for the ETS: Covered employers were given until today, January 10, 2022, to comply with all provisions, except for the testing requirement for unvaccinated employees. The testing requirement was rescheduled to take effect on February 9, 2022.

Several petitioners filed immediate emergency appeals to the Supreme Court asking the Court to reinstitute the judicial stay, pending a full hearing and decision on the matter. The Supreme Court granted the request and held an emergency hearing this past Friday, January 7, 2022 regarding a judicial stay of the ETS.

However, as of today, January 10, the Supreme Court has not yet issued a ruling. That means the federal ETS is in effect and will proceed according to the new compliance dates announced by OSHA, pending the Supreme Court’s disposition of the case. You can find a full discussion of those requirements in our previous advisory.

In the meantime, late last week the Michigan Occupational Safety & Health Administration (MIOSHA) issued a statement indicating that OSHA was not requiring states with state plans like Michigan to adopt the ETS or an equivalent until January 24, 2022. MIOSHA stated it is closely monitoring the status of legal challenges to the OSHA ETS while preparing for its deadline to adopt. You can read MIOSHA’s full announcement on the michigan.gov website: Labor and Economic Opportunity – COVID-19 Workplace Safety. This suggests that in Michigan at least, MIOSHA may not start enforcing the requirements of the OSHA ETS until January 24. Due to the lack of clarity, however, employers are urged to come into compliance with the OSHA ETS as soon as possible.

Healthcare Employers: CMS Interim Final Rule

As previously reported, on November 30, 2021 a federal judge in Louisiana issued a preliminary injunction to block the start of the CMS Rule, which applies to certain healthcare entities. The injunction from the Louisiana federal district court applied nationwide except for the ten states that were already under a preliminary injunction order issued on November 29 in Missouri.

On December 15, 2021 a three-judge panel for the U.S. Court of Appeals for the Fifth Circuit ruled that the lower Louisiana federal court only had the authority to block the mandate in the 14 states that had actually filed suit. The following day, a federal court in Texas granted a preliminary injunction to enjoin CMS from enforcing is vaccine mandate in Texas. Thus, the CMS mandate has been blocked from enforcement in 25 states but remains in effect in the remaining 25 states, including Michigan. On December 28, 2021, the CMS updated its FAQs indicating it is moving forward with implementation of the CMS in the 25 states not subject to the Stay and modified its compliance timeline to January 27, 2022 for phase one and February 28, 2022 for phase two. See External FAQ IFC-6 Guidance Memo 12 28 21 226 (508 Compliant).

The U.S. government applied to the Supreme Court asking for a nationwide stay of the injunctions issued by the lower federal courts, pending full review by the lower Circuit courts. The Supreme Court granted the request and also held an emergency hearing on the CMS Rule this past Friday, January 7, 2022.

Again, however, we have heard nothing further from the Supreme Court. Thus, the CMS Rule remains blocked in 25 states as of today, but continues on in the other 25 states.

Please contact your Varnum attorney, or any member of the firm’s labor and employment practice team, with questions about how these legal developments will affect your workforce and advice for bringing your organization into compliance with these mandates.

UPDATE: US Supreme Court Halts Federal Vaccination Mandate for Employers, but Permits CMS Rule to Take Effect

On Friday, December 17, 2021, a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit lifted the Fifth Circuit’s stay that had prevented the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS) on COVID-19 from being implemented for employers with 100 or more employees. The ETS is now able to move forward absent issuance of a stay from the U.S. Supreme Court. OSHA has issued new compliance dates for employers.

The Sixth Circuit’s ruling was issued by a 2-1 vote, with Judges Julia Gibbons and Jane Stranch ruling in favor of OSHA’s and Judge Joan Larsen dissenting.

Several petitioners in the case have already filed emergency appeals to the U.S. Supreme Court with requests for the stay to be reinstituted, pending a hearing on the matter. In such emergency appeals, the requests go directly to the justice assigned to the applicable Circuit, which in this instance will be Justice Brett Kavanaugh. The assigned justice has the discretion to decide the request on his or her own or submit the request to the full court to consider. At this time, it is unclear when this decision will be made or if the Supreme Court will hear the case.

The key points from the ETS along with the new compliance dates are summarized below:

Compliance

• Deadlines for Compliance. The new compliance dates according to OSHA are:
  • January 10, 2022: OSHA will not issue citations for noncompliance with any of the requirements of the ETS before January 10.
  • February 9, 2022: For testing requirements, OSHA will not issue citations for compliance with testing requirements, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.
• Covered Employers. The ETS covers all employers with 100 or more employees. Part-time employees and remote workers are included in the number of employees for the purpose of determining coverage, but employees of staffing agencies need not be included. Only employees at U.S. locations are counted. Two or more related entities may be regarded as one employer – and thus their employees must be counted together – if they handle safety matters as one company.
• Time Off for Vaccination. Covered employers must support vaccination by providing reasonable time, including up to four hours of paid time, to receive each vaccination dose. Employers must provide reasonable time off and paid sick leave to recover from side effects following each dose.
• Masking. All covered employers must ensure that unvaccinated employees wear a face mask while in the workplace.
• Vaccination or Weekly Testing. All covered employers must implement and enforce a policy that mandates their employees receive the necessary shots to be fully vaccinated – either two doses of Pfizer or Moderna, or one dose of Johnson & Johnson – unless the employer instead implements and enforces a policy mandating any unvaccinated employee to produce a negative test weekly and wear a mask while in the workplace. All covered employers must ensure that any employee still unvaccinated after the specified date (now no later than February 9, 2022, provided the employer is making good-faith efforts to come into compliance) begins producing a verified negative test to their employer on at least a weekly basis. COVID-19 tests that are both self-administered and self-read do not satisfy this requirement.
• Acceptable Proof of Vaccination Status. Employers must determine the vaccination status of each employee. Acceptable proof of vaccination status is a record of immunization from a health care provider or pharmacy, a copy of the COVID-19 Vaccination Record Card, a copy of medical records documenting the vaccination, or another copy of immunization records from a public health system. A signed and dated employee attestation is acceptable in instances when an employee is unable to produce proof of vaccination. These records must be preserved while the ETS is in effect and are subject to audit by OSHA.

Exemptions / Variations

• Remote Workers. Employees who telework or do not report to a workplace where other people work are exempt from compliance with the vaccination and testing requirements. However, they still must be counted for purposes of determining whether the 100-employee threshold has been met.
• Outdoor Workers. Employees who work “exclusively outdoors” are exempt from the ETS vaccination and testing requirements. An employee works exclusively outdoors if he or she works outdoors for the duration of every workday except for de minimis use of indoor spaces where others are present.
• Part-time Workers. The ETS applies to part-time workers as well as full time workers, although the weekly testing requirements are adjusted if an unvaccinated part-time employee does not enter the office every week. If away from the workplace for a week or longer, the employee must produce a verified negative test within seven days before returning to the workplace.
• Medical or Religious Exemptions. The employer vaccination policy required by the ETS should provide for those legally entitled to reasonable accommodation for disability or religious reasons. Such exempt employees must participate in the weekly COVID-19 testing requirement and wear face coverings.

Employees who have previously contracted COVID-19 are not exempt from the vaccination, testing, or masking requirements.

For states with state-administered OSHA plans, such as Michigan, the ETS required the state OSHA agency to adopt the federal ETS standard or measures at least as protective as the federal ETS within 30 days of the ETS’s issuance. At this point, Michigan has not yet issued its plan, but this would be expected to occur within the next 30 days. It remains to be seen whether MIOSHA, Michigan’s own worker safety agency, will modify the ETS and trigger additional requirements for Michigan employers.

Please contact your Varnum attorney or any member of the firm’s labor and employment practice team with questions about how the ETS will affect your workforce. We are continuing to monitor for further developments.