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With no rest for the weary, the new omicron coronavirus variant was detected in various pockets around the world over the holiday weekend, likely rattling employers and raising questions about returning to work. At the same time, there are new developments with respect to the federal government’s vaccine mandates.

Here’s what US employers need to know:

ETS: 6TH CIRCUIT LITIGATION

Where Things Stand: The Fifth Circuit’s stay of OSHA’s ETS, imposed on Nov. 6, remains in effect.  The Biden administration has asked the Sixth Circuit to lift the Fifth Circuit’s stay, arguing that “Congress charged OSHA with addressing grave dangers in the workplace, without any carve-out for viruses or dangers that also happen to exist outside the workplace.”  The Sixth Circuit set a briefing schedule on the stay, indicating it won’t rule on the Biden administration’s request until after Dec. 10.  Because the briefing schedule would run past the ETS’s first compliance deadline of Dec. 6, the administration has asked the Sixth Circuit to expedite the stay’s briefing schedule so that briefing is completed by Dec. 6. In the same motion, the administration asked the Sixth Circuit to set an expedited briefing schedule on the merits, with briefing to be completed by Dec. 29.  Opponents of the ETS have objected to this request, urging the court to reject the administration’s “lightning-speed approach.”

Takeaways:

  • The stay issue is unlikely to be decided before the ETS’s Dec. 6 compliance deadline.
  • The ETS’s Jan. 4 vaccination deadline is unlikely to survive because even if the Sixth Circuit dissolves the stay, OSHA will need to give employers time to implement the ETS.
  • Practically speaking, the party that wins this initial litigation over the stay will prevail; it is unlikely that the ETS’s merits will be resolved until mid-January at the earliest, unless the Supreme Court intervenes in the interim.
FEDERAL HEALTHCARE WORKER VACCINE MANDATE: INJUNCTION

Breaking: A federal court in Missouri has blocked the Biden administration from enforcing CMS’s vaccine mandate for health-care workers in 10 states.  The CMS rule requires health-workers to be vaccinated by Jan. 4, 2022.  Any appeal would face a tough road in the Eighth Circuit, which seats just one Democrat-appointed judge.

OMICRON VARIANT:

Mask Rules & Advisories: Amid concern about the new omicron COVID-19 variant, New York City’s Health Commissioner has issued a mask advisory, “strongly recommending” New Yorkers to wear masks at all times when indoors in public settings. The new advisory is not a requirement, but applies regardless of vaccination status. Other jurisdictions are likely to issue similar masking orders or advisories in the near future.

Travel Restrictions: News of the omicron variant has prompted a new wave of travel restrictions. Countries around the world are implementing new travel restrictions and quarantine requirements. These restrictions currently focus on travel from certain African countries, but broader restrictions can be expected if concern over omicron grows.

Takeaways:

  • Employers who have eased their masking requirements should ready themselves to reinstate mask requirements in response to local orders.
  • Employers should be mindful of new travel restrictions as they plan company events and as employees continue their holiday travels.