On January 25, the Occupational Safety and Health Administration (“OSHA”) formally withdrew its Emergency Temporary Standard (“ETS”) on vaccinations, testing, and face coverings for large employers.  This decision follows the Supreme Court’s January 13 order blocking enforcement of the ETS.  While the Supreme Court’s action technically only stayed enforcement of the ETS pending further proceedings in the lower courts, the Court’s written opinion made clear that a majority of the Justices believe that OSHA had exceeded its Congressionally-granted authority to promulgate regulations to promote workplace safety.  This was widely viewed as a death knell for the ETS.

Continue Reading OSHA Withdraws Vaccine-or-Test Emergency Temporary Standard

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

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.”

Continue Reading Fifth Circuit Blocks OSHA’s Emergency Temporary Standard for Employers with 100+ Employees – Stay Tuned for More Court Rulings

Photo: Rudi Riet via Flickr (CC by SA 2.0)

Boyne Resorts, the company which operates Loon Mountain ski area in New Hampshire, Sunday River and Sugarloaf in Maine and several other ski areas in the US and Canada has announced that all employees will be required to wear safety helmets while working on the snow.  This applies not only to ski and snowboard instructors who routinely wear helmets, but all other workers who get around the mountain on skis or snowboards.  Bicycle helmets will also be required for employees while on duty.  This follows the death last season of a Sugarloaf employee.  The incident was investigated by OSHA which issued a citation for a serious violation of workplace safety rules and levied a fine of $11,408.

Continue Reading New Hampshire Ski Area Sets the Standard for Employee Helmet Use