{"id":8437,"date":"2020-04-01T18:38:32","date_gmt":"2020-04-01T18:38:32","guid":{"rendered":"https:\/\/insulation.org\/?page_id=8437"},"modified":"2022-01-24T19:32:55","modified_gmt":"2022-01-24T19:32:55","slug":"covid19","status":"publish","type":"page","link":"https:\/\/insulation.org\/membership\/covid19\/","title":{"rendered":"COVID-19 News"},"content":{"rendered":"
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-----January 14, 2022 Update
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Note: For the January 13th update, scroll down below to the text in green.<\/em><\/p>\n

Yesterday, on January 13, 2021, the U.S. Supreme Court rendered its decision granting the applications for stay of the Occupational Safety and Health Administration\u2019s (\u201cOSHA\u201d) Emergency Temporary Standard (\u201cETS\u201d), which mandates that employers with at least 100 employees require their workforce to either be vaccinated or subject to weekly testing and mask wearing. However, the fact that the Supreme Court granted the applications for emergency relief does not end this story, despite certain media outlets reporting that the ETS has been \u201cstruck down\u201d or \u201cblocked\u201d in its entirety.<\/p>\n

After the issuance of the ETS in November 2021, many states, businesses and nonprofit organizations challenged the mandate, arguing that OSHA had exceeded its statutory authority and that the ETS was otherwise unlawful. The Fifth Circuit initially entered a stay, delaying the effective date of the ETS, but when the cases were consolidated and heard before the Sixth Circuit, that court lifted the stay and allowed the ETS to take effect. This decision resulted in OSHA announcing that it would begin enforcing the ETS on January 10, 2022. The Sixth Circuit\u2019s decision was appealed to the Supreme Court. The Supreme Court\u2019s decision to issue the stay does not invalidate the ETS completely. What it means is that the Sixth Circuit will now have an opportunity to decide the legality of the ETS on its merits, meaning they will decide whether the ETS is lawful. The Supreme Court has merely put a pause on the ability of OSHA to enforce the ETS while this litigation proceeds.<\/p>\n

So, what\u2019s next? As mentioned above, the Sixth Circuit will review the applicants\u2019 petition for review of the ETS on its merits. But based on the recent decision from the Supreme Court, during that time the ETS will not be in effect. After the Sixth Circuit reviews the applications, either party can seek a writ of certiorari, again to the U.S. Supreme Court. If the writ of certiorari is denied, the Supreme Court\u2019s order issuing the stay will terminate automatically. However, if the writ of certiorari is granted, the stay will terminate only after the Supreme Court\u2019s decision.<\/p>\n

What did we learn from yesterday\u2019s decision? The majority of justices on the Supreme Court determined not only that the applicants are likely to succeed on the merits of their claim, but also that OSHA does not have the authority to issue a mandate of this magnitude. In writing for the Court, the majority wrote, \u201cThe Secretary has ordered 84 million Americans to either obtain a COVID\u201319 vaccine or undergo weekly medical testing at their own expense. This is no \u2018everyday exercise of federal power.\u2019\u201d The majority went on to note that an ETS is only permissible in the narrowest of circumstances, and that an ETS has only been issued nine (9) times in the past. In this instance, the Court felt that although COVID-19 is a risk that occurs in many workplaces, it is not necessarily an occupational hazard in most: \u201cPermitting OSHA to regulate the hazards of daily life\u2014simply because most Americans have jobs and face those same risks while on the clock\u2014would significantly expand OSHA\u2019s regulatory authority without clear congressional authorization.\u201d The majority also made a point to state that the mandate by OSHA would force large employers to incur billions of dollars in unrecoverable compliance costs and will ultimately lead to hundreds of thousands of employees leaving their jobs.<\/p>\n

Justices Gorsuch, Thomas and Alito joined the majority in a concurring opinion. For their part, they emphasized that the most important question was, \u201cWho gets to decide?\u201d \u201cThe only question is whether an administrative agency in Washington, one charged with overseeing workplace safety, may mandate the vaccination or regular testing of 84 million people. Or whether, as 27 States before us submit, that work belongs to state and local governments across the country and the people\u2019s elected representatives in Congress.\u201d Ultimately, it was their conclusion that this power, to mandate vaccination or regular testing, lies with the states and Congress, not OSHA.<\/p>\n

The dissent wrote a lengthy decision as well. Justices Breyer, Sotomayor and Kagan determined that OSHA had done exactly what Congress had commanded it to do, and that was to take action to address the COVID-19 pandemic. The dissenting justices found the ETS no different than past actions OSHA has taken to combat risks of fire, faulty electrical installations, and inadequate emergency exits, even though the dangers prevented by those rules arise not only in workplaces but in many physical facilities. The dissent also felt strongly that the public interest in protecting workers from disease and death overwhelmingly outweighed an employer\u2019s cost to implement the ETS.<\/p>\n

Because this decision by the Supreme Court did not end the ETS completely, we will continue to monitor these cases as they make their way back down to the Sixth Circuit and, we suspect, back to the Supreme Court. In the meantime, ALL employers, whether or not required to abide by the requirements of the ETS, should be mindful of their existing obligations under other OSHA standards and the General Duty Clause. In a statement from the Secretary of Labor, Marty Walsh, \u201cRegardless of the ultimate outcome of these proceedings, OSHA will do everything in its existing authority to hold businesses accountable for protecting workers, including under the COVID-19 National Emphasis Program and General Duty Clause.\u201d<\/p>\n

----- January 13, 2022 Update
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Earlier today, the U.S. Supreme Court issued a decision preventing OSHA from enforcing its Emergency Temporary Standard [ETS] on COVID-19.\u00a0 Today\u2019s decision did not strike down the ETS \u2013 it merely reinstates the stay that was previously lifted by the Sixth Circuit Court of Appeals.\u00a0 The stay will be in effect until the challenges to the ETS are fully litigated.\u00a0 That means that OSHA will only enforce this ETS if it ultimately survives litigation.<\/p>\n

That said, the Opinion contains very strong language supporting the argument that OSHA has exceeded its statutory authority and agreeing that those challenging the ETS are likely to succeed on the merits of their claims.\u00a0 Among other reasons, the Court found that COVID-19 is not a work-related danger in most workplaces, but is a \u201cuniversal risk\u201d that can and does spread at home, in schools, \u201cand everywhere else that people gather.\u201d<\/p>\n

The stay will remain in effect until the Sixth Circuit issues a decision on the merits of the underlying challenges to the merits of the ETS, and while any appeal(s) therefrom are pending.<\/p>\n

As always, NIA will continue to provide you with updates as this progresses.<\/p>\n

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Enforcement of OSHA's ETS for COVID-19<\/h2>\n

January 10, 2022<\/strong><\/p>\n

Starting today, OSHA will begin enforcing all aspects of the ETS for COVID-19, save for the provisions that apply to weekly testing of employees who are not fully vaccinated.\u00a0 OSHA has stated that it will not issue citations for noncompliance with the standard\u2019s testing requirements before February 9, so long as the employer is exercising reasonable, good faith efforts to come into compliance with the standard.\u00a0 On Friday, January 7, 2022, the U.S. Supreme Court heard oral arguments on the issue of whether to reinstitute a stay of the entire ETS.\u00a0 The Court has not yet issued a decision.\u00a0 In the meantime, employees with 100 or more employees can expect OSHA to take enforcement action with respect to the ETS.<\/p>\n

NIA will continue to update you regarding the status of the COVID-19 vaccine and testing mandates.<\/p>\n

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Free Advice and Articles on Coronavirus\/COVID-19 for Employers from NIA Legal Counsel<\/h2>\n

We would like to share several resources for employers related to Coronavirus disease (COVID-19) from NIA Legal Counsel, Gary Auman of Auman, Mahan & Furry.<\/p>\n

December 2021: Update from NIA Legal Counsel<\/strong><\/h2>\n

December 20, 2021\u2014Update: Sixth Circuit Lifts Stay of OSHA Covid-19 Emergency Temporary Standard<\/h3>\n

Enforcement of OSHA\u2019s Covid-19 emergency temporary standard (\u201cETS\u201d), requiring all employers with 100 or more employees to implement a vaccine or testing policy, had been stayed (i.e., put on hold) while its legality is being challenged. \u00a0However, on Friday, December 17, 2021, the Sixth Circuit Court of Appeals lifted the stay.\u00a0 That means OSHA can now enforce the ETS.\u00a0 The Sixth Circuit\u2019s decision does not impact the federal contractor vaccine mandate, which remains stayed.<\/p>\n

OSHA stated that it will not issue any citations for failure to comply with the ETS before January 10, 2022. \u00a0This will allow employers time to get their programs implemented. \u00a0Further OSHA indicated that it will not issue citations for non-compliance before February 9, 2022 \u201cso long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance.\u201d<\/p>\n

Although the Sixth Circuit lifted the stay, the Court has yet to reach a decision on the merits of the underlying challenges to the ETS.\u00a0 In the meantime, a number of petitioners have appealed Friday\u2019s decision to the U.S. Supreme Court, seeking to again stay enforcement of the ETS.<\/p>\n

If your business is covered by the ETS, you should work to have your written Covid-19 plan in place by January 10, 2022 and begin following those elements of the plan that you are able to implement immediately.\u00a0 OSHA has provided policy templates on its website for employers electing to follow the \u201cmandatory vaccination\u201d option, as well as employers electing the \u201cvaccination or testing and face covering\u201d option for compliance.\u00a0 Those policy templates can be found here.<\/a>\u00a0 To the extent that the ETS will require you to implement measures that you are not able to complete by January 10, 2022, you will need to decide upon a timeline to follow to ensure that you reach full compliance by February 9, 2022.<\/p>\n

NIA will continue to update you regarding the status of the COVID-19 vaccine\/testing mandates.<\/p>\n

December 1, 2021\u2014Injunctions Granted Against Vaccine Mandates<\/h3>\n

On November 30, 2021, two courts granted injunctions against the federal contractor vaccine mandate and the Centers for Medicare and Medicaid Services (CMS) mandate.<\/p>\n