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.

The Sixth Circuit panel will now consolidate all existing petitions and rule on challenges to the ETS. The court has not yet made any decisions or set any briefing schedules. Five petitions have already been filed in the Sixth Circuit, consolidated under the case Bentkey Services v. OSHA. It is likely that the panel will ultimately review and address the stay issued by the Fifth Circuit, described here. The Sixth Circuit has more judges appointed by Republican presidents than Democratic presidents and is generally thought to lean conservative although it is unknown what panel will hear the case. It is possible that the challenges will eventually reach the U.S. Supreme Court.

OSHA has announced that it will not move forward with enforcement of the ETS while these legal challenges are pending.

Employers should continue to monitor developments in this quickly changing legal landscape and consult with experienced legal counsel regarding any questions about the status and implementation of the ETS, including the applicability of any state laws and regulations regarding vaccination.

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. Continue Reading Fifth Circuit Stays OSHA’s New Emergency Temporary Standard

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 here.

The Fifth Circuit did not provide further analysis or comment, and did not specify whether the injunction was meant to be nationwide in scope.  Notably, this ruling does not mean employers cannot elect to voluntarily impose mandatory vaccine policies, nor does the ruling mean that those policies are illegal.

The stay may be exceptionally short lived because next week one federal circuit will be selected via lottery to handle the consolidated case on this issue (4 challenges have been filed thus far), and the selected circuit could reverse the stay.  Challengers to the ETS have a 10-day window to file their petitions so they can be included in the lottery, which will determine which circuit court gets possession of the consolidated case.  Also, the Fifth Circuit in its opinion ordered expedited additional briefing from the Biden Administration on Monday and the petitioners on Tuesday, but it is unclear when or if the Fifth Circuit will take additional action.  Employers should consult experienced legal counsel for the most up-to-date advice on vaccine policies and the status of the ETS.

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. Continue Reading OSHA’s COVID-19 Vaccination and Testing ETS: What Employers Must Know

Since the Food and Drug Administration (FDA) approved use of three COVID-19 vaccines under emergency use authorizations in April 2021, many public and private employers have announced and/or implemented mandatory vaccination policies. In addition, on September 9, 2021, President Biden signed an executive order requiring that certain federal contractors mandate vaccinations for their workers and directed OSHA to implement a rule that would require employers with 100 or more employees to mandate vaccination and/or COVID-19 testing. For more information, see our previous blog post.

Employers implementing mandatory vaccination policies (either by the company’s decision or pursuant to government requirements) have been left with questions on how to properly address employee requests for accommodations to such policies due to religious beliefs, practices, and observances. Continue Reading EEOC Updates COVID-19 Technical Guidance to Address Religious Objections to COVID-19 Vaccine Mandates

The Labor Department’s Occupational Safety and Health Administration (OSHA) has taken steps to move forward with President Biden’s plan to require private-sector workers to be vaccinated against COVID-19 or be regularly tested. OSHA submitted the initial text of the proposed standard to the White House for approval on Tuesday, October 12, 2021. The text has not been made public, and details could change during White House review. Continue Reading OSHA Vaccination ETS Moving Forward

On October 11, 2021, Texas Governor Greg Abbott issued an executive order expanding upon a recently passed law that generally prohibited Texas businesses from requiring proof of vaccination from customers. The new executive order applies to both consumers and employees and states, in part: “No entity in Texas can compel receipt of a COVID-19 vaccine by any individual, including an employee or a consumer, who objects to such vaccination for any reason of personal conscience, based on a religious belief, or for medical reasons, including prior recovery from COVID-19.” The executive order does not define “personal conscience” or explain what “prior recovery from COVID-19” means in the context of objecting to a COVID-19 vaccine. The order also sets up a maximum fine of $1,000 for failure to comply with the order (although the order is unclear regarding how the fine would be calculated). Continue Reading Texas Executive Order Creates Confusion for Mandatory Vaccination Policies

On October 7, 2021, Mayor London Breed and the San Francisco Department of Public Health announced that the city will relax indoor face mask requirements in certain settings if hospitalization rates remain stable or decline. The change will take effect October 15, 2021. Read the announcement. Continue Reading San Francisco Relaxes Mask Requirements for Indoor Settings With Groups of Vaccinated Individuals Who Regularly Interact

On October 6, 2021, Los Angeles Mayor Eric Garcetti announced on Twitter that he had signed an ordinance expanding the city’s requirements for proof of COVID-19 vaccination. The law will become effective on November 4 and will remain in effect until further notice. Continue Reading Los Angeles Mayor Garcetti Signs Ordinance Requiring Proof of COVID-19 Vaccination for Certain Indoor Establishments and Large Outdoor Events

On September 17, 2021, the County of Los Angeles Department of Public Health issued a new Public Health Order, effective at midnight on October 7, 2021, and continuing until further notice.

The Health Order emphasizes that “[t]he best way to reduce the current level of community transmission and to prevent future surges is for everyone who is eligible, including those who have recovered from a COVID-19 infection, to get fully vaccinated as soon as possible.” To promote its goal and reduce community transmission of the virus, the Health Order requires: Continue Reading LA County Issues New Health Order Affecting Bars, Breweries, Wineries, Distilleries, Restaurants, and Outdoor Mega Events