On Thursday, the U.S. Supreme Court handed down a pair of anxiously-awaited decisions affecting tens of millions of American workers.
In the first decision, the Court stayed implementation of an Emergency Temporary Standard (“ETS”) issued by OSHA that would have required employers with 100 or more employees to adopt and enforce policies either (a) mandating COVID-19 vaccines for most workers, or (b) requiring unvaccinated workers to wear masks at work and get weekly tests for COVID-19.
On January 7, 2022, the U.S. Supreme Court will hear arguments on the federal vaccine mandates for employers with 100 or more employees and for healthcare facilities receiving federal funds. The Court has ordered additional briefing on the issues and has set one hour for oral argument.
The Occupational Safety and Health Administration (“OSHA”) released
On December 14, 2021, the EEOC updated its guidance entitled What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws to include a section on how the definition of disability applies to COVID-19. The section includes helpful Q and A addressing when COVID-19 becomes an actual disability.
Continue Reading EEOC Updates Guidance To Address Whether COVID-19 Is a Disability
On Friday, December 17, 2021, the Sixth Circuit Court of Appeals dissolved the stay of the Occupation Safety and Health Administration (OSHA) Emergency Temporary Standard (ETS), which requires employers with 100 or more employees to adopt a policy either (a) mandating the COVID-19 vaccine for all employees or (b) mandating employees to show proof of vaccination status or submit to weekly testing. Within hours, the decision was appealed to the United States Supreme Court. That same night, OSHA issued a statement advising employers that, now that the stay has been lifted, it will allow a brief extension of the deadlines established in the initial ETS. Covered employers must now comply with the provisions of the ETS by January 10, 2022. If an employer opts to permit employees to undergo weekly testing in lieu of vaccination, then testing of unvaccinated employees must begin on or before February 9, 2022.
Continue Reading Sixth Circuit Dissolves Stay of OSHA ETS; OSHA Immediately Posts New Compliance Deadlines
The Centers for Medicare and Medicaid Services (“CMS”) issued a nationwide suspension of its vaccine mandate for health care workers. CMS’s decision comes after two District Courts issued preliminary injunctions pausing implementation of the rule.
On December 2, 2021, CMS announced that it “will not enforce the new rule regarding vaccination of health care workers or requirements for policies and procedures in certified Medicare/Medicaid providers and suppliers…while there are court-ordered injunctions in place prohibiting enforcement of this provision.”
Continue Reading Update: Nationwide Suspension of CMS Vaccine Mandate for Healthcare Workers
On December 7, 2021, the United States District Court for the Southern District of Georgia stayed the federal contractor vaccine mandate issued by the White House via Executive Order 14042 on September 9, 2021. This Court Order, which applies nationwide, enjoins the federal government “from enforcing the vaccine mandate for federal contractors and subcontractors in all covered contracts in any state or territory of the United States of America.” Previously, on November 30, 2021, a federal court in Kentucky enjoined the government from enforcing the mandate in Tennessee, Ohio and Kentucky only. The Georgia Court expanded the reach of the order nationwide because one of the plaintiffs in the Georgia litigation, the Associated Builders and Contractors’ trade association, has members nationwide with contacts and subcontracts in every state. Therefore, the Court concluded that “limiting the relief to only those [contracts] before the Court would prove unwieldy and would only cause more confusion.”
Continue Reading Enforcement of Federal Contractor Vaccine Mandate Halted Nationwide
The Centers for Medicare and Medicaid Services’ (CMS) vaccine mandate is, for the time being, not enforceable in New Hampshire and nine other states. On Monday, November 29, 2021, the U.S. District Court for the Eastern District of Missouri granted a preliminary injunction blocking the mandate.
What is the CMS Mandate?
The CMS vaccine mandate requires that select healthcare workers at facilities receiving Medicare and or Medicaid funding be fully vaccinated by January 4, 2022.
Continue Reading CMS Vaccine Mandate Halted in New Hampshire
On November 12, 2021, the Fifth Court of Appeals stayed the enforcement of the OSHA Emergency Temporary Standard (ETS) requiring employers with 100+ employees to adopt a policy mandating employees to show proof that they have been fully vaccinated or submit to weekly testing starting in January 2022.
The Order found that the OSHA ETS is “fatally flawed” in that it is both “overinclusive,” since it applies to all industries based on size, without any analysis of the specific risks applicable in each industry, and “underinclusive,” since it only applies to employers with 100+ employees, and does not attempt to protect employees who work for small employers. The Court further found that “the mere specter of the [OSHA] Mandate has contributed to untold economic upheaval in recent months” and that in enacting this ETS, OSHA had exceeded its powers and violated “the constitutional structure that safeguards our collective liberty.”
President Joe Biden announced on September 9, 2021 a new rule requiring employers with at least 100 employees to mandate that their workers be vaccinated against COVID-19 or undergo weekly testing. The president also signed orders indicating that most federal employees and federal contractors, as well as most health care workers across the country, must be vaccinated. Previously some private employers enacted policies requiring vaccines of their workers, but these decisions were made primarily based on workplace dynamics and culture. With broader government imposed mandates in the offing, employers are asking more questions than before about how to handle mandating vaccines in a polarized workforce in a tight labor market.
Continue Reading The Challenges of Vaccine Mandates
On Thursday, September 29, 2022, Massachusetts extended the paid sick leave program until April 1, 2022. The reason for taking such leave have also been broadened. Irrespective of the number of full-time employees an employer may have, the paid sick leave mandate requires Massachusetts employers provide another 40 hours of paid time off in order to deal with several COVID-19 related issues.
Continue Reading Massachusetts Extends COVID-19 Emergency Sick Leave Into 2022