On January 13, 2022, the United States Supreme Court granted emergency relief to the petitions of numerous states, businesses, and non-governmental organizations by staying the implementation and enforcement of the federal Occupational Safety and Health Administration’s (“OSHA”) COVID-19 Emergency Temporary Standard (“ETS”). Under the original ETS, private employers with 100 or more employees were required to implement a mandatory vaccination or weekly testing/face covering policy, which constituted a drastic change in policy for many employers and contradicted many state requirements. Although the U.S. Court of Appeals for the Sixth Circuit has yet to ultimately decide on the merits whether the ETS can stand, the stay by the Supreme Court indicates how the Court may ultimately view the ETS and OSHA’s authority to require vaccinations and weekly testing. Nonetheless, the ETS is not dead yet, so employers should continue to monitor the appeal process and OSHA’s response to the stay.
For the second time, the standards-setting board for the California Division of Occupational Safety and Health (“Cal/OSHA”) has readopted, with revisions, the agency’s COVID-19 Prevention Emergency Temporary Standards (“ETS”). The revised ETS become effective on January 14, 2022, and impose new obligations on nearly all employers in the Golden State.
In our annual California Legislative Update, we briefly explained that SB 606 expanded the enforcement authority of the California Division of Occupational Safety and Health (“Cal/OSHA”) in various ways. With the new law’s effective date (January 1, 2022) right around the corner, we are providing a more detailed breakdown on the two new categories of Cal/OSHA violations created by SB 606 and its potential impact on California employers.
On December 17, 2021, in a “Friday Night Surprise” the Sixth Circuit Court of Appeals lifted the Stay on the Federal Occupational Safety and Health Administration’s COVID-19 Emergency Temporary Standard (ETS). This seminal ETS applies to employers with 100 or more employees and requires that employees be either (1) vaccinated; or (2) weekly tested and fully masked if unvaccinated. While it is anticipated that the Supreme Court will ultimately decide whether the ETS stands, OSHA has already stated that they will begin enforcement of the ETS in January 2022. Specifically, OSHA will enforce all requirements except testing for unvaccinated employees beginning January 10, 2022, and enforcement related to testing will begin February 9, 2022.
On November 4, 2021, in response to President Biden’s Executive Order, the Department of Labor, through the Occupational Safety and Health Administration (“OSHA”), issued an Emergency Temporary Standard (“ETS”). You can read our prior article about the ETS here. Generally, the ETS mandates all employers with 100 or more employees to require employees be vaccinated against COVID-19 or undergo weekly testing. The ETS was immediately halted when the United States Court of Appeals for the Fifth Circuit issued a temporary stay. Then, numerous lawsuits were filed across the nation, and actions were pending in each of the other Circuit Courts. The Sixth Circuit “won” the multidistrict lottery, and was selected to hear the combined challenges, including OSHA’s emergency motion to dissolve the stay. You can read our prior article about the temporary stay here.
On November 4, the Occupational Safety and Health Administration (OSHA) released its much-anticipated mandate-or-test workplace vaccine emergency rule (“the Rule”). The Rule requires employers with 100 or more employees to either mandate covered employees be fully vaccinated against COVID-19 or require covered employees that are not fully vaccinated to test for COVID-19 at least weekly and wear a face covering. The Rule went into effect immediately on November 5 with employers expected to comply by no later than January 4, but implementation has since been halted due to pending legal challenges. For more information of the Rule requirements and specifics, see our prior article It’s Here: OSHA’s Rule Mandating COVID Vaccinations or Weekly Testing for Employers.
The much-anticipated vaccine rule is here. On November 4, 2021, and in response to President Biden’s Executive Order, the Department of Labor, through the Occupational Safety and Health Commission, issued the Emergency Temporary Standard (“the Rule”), requiring mandatory vaccination or weekly COVID testing for many U.S. employers. The Rule is effective immediately.
On September 9, 2021, the White House released a memorandum titled “Path Out of the Pandemic,” which detailed President Biden’s COVID-19 Action Plan. The memorandum contains six priorities for combatting the COVID-19 pandemic, including a requirement that all employers with 100 or more employees must implement a vaccine mandate and/or require weekly testing of unvaccinated workers.
On August 13, 2021, the U.S. Occupational Safety and Health Administration (“OSHA”) updated its “Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.” The updated guidance, which does not apply to healthcare workplace settings covered by OSHA’s COVID-19 Emergency Temporary Standard, reflects recent changes to the guidance for fully vaccinated individuals published by the Centers for Disease Control and Prevention (“CDC”) on July 27, 2021. Among the updates discussed below, the most notable changes are the modified recommendations for fully vaccinated employees. OSHA advises that employers should use the guidance to ensure they protect unvaccinated and otherwise at-risk workers and to determine any appropriate control measures to implement.
On June 17, 2021, the Cal/OSHA Standards Board voted to adopt revisions to the Emergency Temporary Standards (ETS), and Governor Gavin Newsom signed an executive order allowing the revised ETS to go into effect immediately. The revised ETS now applies to nearly all workers in California not covered by Cal/OSHA’s Aerosol Transmissible Diseases standard. Continue Reading Cal/OSHA Finally Enacts Revised Emergency Temporary Standards