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21 Dec

December 2021 Mid-Month #2 Federal HR Updates

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Federal Court Reinstates OSHA ETS

Update Applicable to:
All employers with 100 or more employees.

What happened?
On December 17, 2021, the 6th Circuit Court of Appeals lifted the stay on the Occupational Health and Safety Administration’s (OSHA) Emergency Temporary Standard (ETS) on mandatory COVID-19 vaccinations and testing for employers with 100 or more employees.

What are the details?
The 6th Circuit Court of Appeals found that OSHA did not exceed its authority to issue the ETS. The decision comes by way of a 2-1 vote by a three-judge panel of the circuit. It lifts the stay imposed on the ETS by the 5th Circuit, and likely sets up an appeal by the mandate’s challengers to the U.S. Supreme Court.

Effective immediately, employers with 100 or more employees are required to enforce the OSHA ETS mandate by requiring their employees either to be fully vaccinated or subject to weekly COVID-19 testing. However, OSHA will not issue citations for non-compliance with any requirements of the ETS before January 10, 2022, and will continue to not issue citations before February 9, 2022, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.

Not long after the Court of Appeals voted their decision to lift the ETS block, an application for an emergency petition was filed directly with SCOTUS, asking the court to immediately replace the stay. This was followed by a virtual flood of similar requests–at least eight such emergency applications have been filed on behalf of over 25 employer groups and it is expected to increase in the near future. The emergency request will be sent to Justice Kavanaugh, who will likely request the full court to weigh in on the requests—setting up a decision by all nine Supreme Court justices.

For more information, please see the links below:

OSHA ETS Website

U.S Department of Labor News Release

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What do employers need to do?
Employers should review the links above and implement several actions like the ones below to ensure they comply with OSHA’s ETS:

  • Establish a policy on vaccination.
  • Determine vaccination status of each employee, obtain acceptable proof of vaccination, maintain records and roster of vaccination status.
  • Provide support for employee vaccination.
  • Require employees to promptly provide notice of positive COVID-19 test or COVID-19 diagnosis.
  • Remove any employee who received positive COVID-19 test or COVID-19 diagnosis.
  • Ensure employees who are not fully vaccinated wear face coverings when indoors or when occupying a vehicle with another person for work purposes.
  • Provide each employee information about the ETS; workplace policies and procedures; vaccination efficacy, safety, and benefits; protections against retaliation and discrimination; and laws that provide for criminal penalties for knowingly supplying false documentation.
  • Report work-related COVID-19 fatalities to OSHA within eight hours and work-related COVID-19 in-patient hospitalizations within 24 hours.
  • Make appropriate records available
  • Ensure employees who are not fully vaccinated are tested for COVID-19 at least weekly (if in the workplace at least once a week) or within seven days before returning to work (if away from the workplace for a week or longer).

Federal Court Reinstates Healthcare Workplace Vaccine Mandate for Half the Country

Update Applicable to:
All employers with Medicare and Medicaid certified employees.

What happened?
On December 15, 2021, the U.S Court of Appeals for the Fifth Circuit reactivated the Centers for Medicare and Medicaid Services (CMS) vaccination mandate for 25 states.

What are the details?
Per our previous communication here, a federal judge in Missouri issued a preliminary injunction blocking the CMS vaccine mandate that applies to certain recipients of Medicare and Medicaid funds in 10 different states. Then another federal judge in Louisiana issued a preliminary injunction against the CMS vaccine mandate applying it to all remaining states. 

On December 15, 2021, the 5th Court Circuit found that the nationwide injunction of the CMS vaccine mandate issued by the Western District of Louisiana should be narrowed to apply only to the 14 states involved in the Louisiana lawsuit and permits the CMS to proceed in enforcing its vaccination mandate in all states that were not plaintiffs.

Effective as of December 16, 2021, the CMS mandate must be enforced in California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Tennessee, Vermont, Virginia, Washington, and Wisconsin.

For more information, please see the links below:

Previous Vensure Legal Update

Nationwide Injunction

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What do employers need to do?
As of now, the CMS has yet to release guidance for the mandate. Employers in the 25 states mentioned above should review the provided links and do their best to take immediate action to be in compliance with the re-issued mandate.

The Fisher Phillips law firm suggested reviewing their 5-step survival guide as a resource for tips on how to prepare for the new mandate. Their article can be found here.