Near the end of 2021, the Occupational Health and Safety Administration (OSHA) issued the Emergency Temporary Standard (the ETS), which required employers with 100 or more employees to put in place a mandatory vaccination policy or require weekly COVID-19 testing and mask wearing by unvaccinated or partially vaccinated employees. On November 5, 2021, the United States Court of Appeals for the Fifth Circuit stayed enforcement and application of the vaccine mandate; this stay was dissolved by the Sixth Circuit Court of Appeals on December 17, 2021. See the discussion of these rulings here and here. Thereafter, the United States Supreme Court agreed to review the issue.
Chris Wilkinson maintains a broad litigation and advice practice in labor and employment, wage-and-hour, federal contractor compliance, equal pay, government relations, and administrative law. He represents multinational employers, advising and counseling on the full range of employment and compliance matters arising out of federal and state laws.
Chris’ current practice focuses on counseling employers and litigating pay equity matters arising out of federal and state claims. He helps clients navigate large-scale government investigations and litigation arising out of discrimination, retaliation, whistleblower, and other enforcement matters. He also investigates highly sensitive matters at the executive level, ensures legal compliance in diversity and inclusion efforts, and strategizes regarding labor and employment risks arising out of the COVID-19 pandemic.
On November 30, 2021, the U.S. District Court for the Eastern District of Kentucky granted a preliminary injunction blocking the federal government from moving forward with the COVID-19 protocols for federal contractors issued by the Safer Federal Workforce Task Force (Task Force) and promulgated by President Biden in Executive Order 14042. Under the guidance issued by the Task Force, employees of covered federal contractors and those working “in connection with” federal contracts must be fully vaccinated by January 18, 2022.
This case, brought by Kentucky, Ohio, and Tennessee, is one of many challenges that have been brought against the vaccine mandate in federal courts around the country. However, this decision prohibits enforcement of the vaccine mandate only for covered federal contractors and subcontractors in covered contracts in Kentucky, Ohio, and Tennessee.
On November 16, 2021, the U.S. Judicial Panel on Multidistrict Litigation randomly assigned the U.S. Court of Appeals for the Sixth Circuit to hear legal challenges to the vaccine emergency temporary standard (ETS) issued by the Occupational Safety and Health Administration (OSHA). The ETS, affecting employers with 100 or more employees, is summarized here.…
On November 12, 2021, a panel of the Fifth Circuit Court of Appeals issued a 22-page order reaffirming the initial stay of a vaccine emergency temporary standard (ETS) issued by the Occupational Safety and Health Administration (OSHA). The ETS, affecting employers with 100 or more employees, is summarized here. The three-judge panel determined that OSHA did not have legal authority to issue the ETS. Among other concerns stated in the decision, the panel determined that OSHA’s mandate did not meet the high bar to issue an emergency standard because it had not sufficiently established a grave danger. Also, the panel found that the ETS’s vaccine or testing requirements were overbroad (by setting forth a standard requirement for workplaces regardless of the specific hazards present in individual workplaces) and underinclusive (by exempting many vulnerable workers in workplaces with fewer than 100 employees). Based on these and other legal infirmities, the panel held that the challenges to the ETS were likely to succeed on the merits, which supported the request for a stay. The panel also stated that the ETS would remain stayed pending adequate judicial review of the request for a permanent injunction and ordered OSHA to take no steps to implement or enforce the ETS until further court order.
On November 6, 2021, in a per curiam opinion, a Fifth Circuit Court of Appeal panel temporarily enjoined the new Occupational Health and Safety Administration’s vaccine Emergency Temporary Standard (“ETS”) for employers with 100 or more employees. A copy of the opinion is available here. Our prior blog post on the ETS is available…
The Department of Labor’s Occupational Safety and Health Administration (OSHA) has issued its long-awaited emergency temporary standard requiring all employers with a total of 100 or more employees at any time to mandate vaccination and/or weekly COVID-19 testing (the “vaccination/testing ETS”). As expected, the text of the vaccination/testing ETS requires that employees either become fully vaccinated or produce a negative test result at least every seven days before going in to work. In addition, the vaccination/testing ETS requires masks or other face coverings for unvaccinated employees working indoors. The new measure also requires employers to provide up to four hours of paid leave, including travel time, to employees to get vaccinated and recover from any ill effects of the vaccine. If employees experience side effects from vaccination, employers must also provide reasonable time and paid sick leave for recovery from each dose. However, under the federal mandate, employers are not required to shoulder the costs of weekly testing of employees or of providing face coverings for employees.