On January 13, 2022, the Supreme Court of the United States (SCOTUS) issued an opinion ruling that the parties challenging OSHA’s COVID-19 Vaccine and Testing Emergency Temporary Standard, which required private US employers with 100 or more employees to mandate vaccination or regular testing of their workforce, were likely to succeed on the merits of
What’s at Stake in the Supreme Court’s OSHA Vaccine-or-Testing Case
We are pleased to share a recent SHRM article, “What’s at Stake in the Supreme Court’s OSHA Vaccine-or-Testing Case,” with quotes from Robin Samuel. The U.S. Supreme Court will hear oral arguments January 7 on whether the Occupational Safety and Health Administration (OSHA) overstepped its authority when it issued an emergency temporary standard (ETS) requiring…
Update on COVID-19 Vaccine Mandates
Special thanks to Maurice Bellan, Graham Cronogue and Sydney Hunemuller.
On September 9, 2021, President Biden issued Executive Order 14042 and related guidance, requiring most government contractors and subcontractors who contract with federal agencies to impose a COVID-19 vaccine mandate on their employees. In the intervening months, the scope and significance of Executive Order 14042 have continued to change. As we near the end of 2021, we expect these shifts to continue at least until January 2022, but likely well afterward. The following are some of the key areas where we have seen changes and expect to see more:
Timing: The enforcement deadline for vaccination has moved and may move again, especially in light of the multiple lawsuits surrounding its implementation, including the nationwide injunction which was issued December 8 and the potential congressional response (see infra) The original deadline for employee vaccination was December 8, 2021, but the current deadline for employees to be “fully vaccinated” has been moved to January 18, 2022. This additional time provides a small amount of breathing room for corporations, but it remains to be seen whether the extension will be enough or if more time will be allowed. Unless and until a new deadline is issued, it is wise to treat January 18 as the target date. However, compliance teams should be alert to any extensions that would allow for a smoother transition.
Agency-Specific Regulations: The scope of the mandates have increased, as certain agencies have applied the mandate to contractors that provide only products. The Executive Order and guidance carved out contractors who solely provided products. However, the guidance left the door open for agencies to impose their own wider-reaching requirements, regardless of the types of contracts involved. Agencies have already begun imposing these separate requirements, further complicating the landscape and obligating contractors to carefully scrutinize any new bids or contract modifications lest their particular agency has included the FAR clause requiring compliance. Accordingly, the intake process needs to remain diligent to both avoid agreeing to this significant commitment and seize on potential opportunities to try to negotiate delayed implementations or other concessions. By the same token, companies should be alert for changes to agency requirements in case an agency retracts or refines its treatment of product providers.
Legal Challenges: It remains an open question as to which (if any) of the restrictions will actually become effective for product or service providers, as multiple litigants have challenged various aspects of the mandate and have received substantial (albeit temporary) relief. The following are some key litigation challenges:…
Companies Grapple With Questions About Covid-19 Vaccine Mandates
We are pleased to share a recent Wall Street Journal article, Companies Grapple With Questions About Covid-19 Vaccine Mandate, with quotes from Robin Samuel. This article discusses the challenges and questions companies face when implementing the Biden administration’s Covid-19 vaccine mandate.
Are US Employers That Don’t Mandate Vaccines Now At Risk?
We are pleased to share a recent International Employment Lawyer article, “Are US Employers That Don’t Mandate Vaccines Now At Risk?” by Stephanie Priel, Robin Samuel, and Autumn Sharp. The article discusses risks companies that are not mandating COVID-19 vaccines may face, as well as steps those companies can take to meet their health and…
OSHA Joins the Chorus: Updated Agency Guidance Encourages Employers to Mandate the Jab
The United States Department of Labor, Occupational Safety and Health Administration (OSHA) has decided to sing the same song as its sister agency. Last Friday, August 13, OSHA updated its guidance for American workplaces, auto-tuning its recommendations for fully vaccinated employees to match recent guidance issued by the Centers for Disease Control and Prevention (CDC).…
Employers Should Expect New DOJ Anti-Discrimination Moves
Special thanks to guest contributors Ginger Partee and Matthew Gorman.
As the country awaits confirmation of Judge Merrick Garland, President Joe Biden’s pick for attorney general to head the U.S. Department of Justice, employers in the U.S. should begin to consider what a Biden administration DOJ might mean for their workplace.
Biden has appointed…
California Employers’ To-Do List Grows With New Worker Laws
California Gov. Gavin Newsom (D) closed this most recent legislative season by signing dozens of new bills into law that affect California employers. Though some were emergency bills and took effect upon signing, the remainder take effect on Jan. 1, 2021.
The laws are wide-ranging, encompassing topics from pandemic-related measures, to the first board of…
OSHA Guidance on Wearing Masks in the Workplace
On June 10, the Occupational Safety and Health Administration (OSHA) released new guidance, in the form of frequently asked questions and answers, regarding the use of masks in the workplace.
The new guidance outlines the differences between cloth face coverings, surgical masks and respirators. It further reminds employers not to use surgical masks or cloth face coverings when respirators are needed. In addition, the guidance notes the need for social distancing measures, even when workers are wearing cloth face coverings, and recommends following the Centers for Disease Control and Prevention’s guidance on washing face coverings. (For our FAQ on face coverings, click here.)
Importantly, the new guidance is not a standard or regulation, and it creates no new legal obligations. It contains recommendations as well as descriptions of mandatory safety and health standards. OSHA states that the “recommendations are advisory in nature, informational in content, and are intended to assist employers in providing a safe and healthful workplace.”
We’ve copied the most helpful OSHA FAQs here and underlined pertinent language for emphasis:
Are employers required to provide cloth face coverings to workers?
Cloth face coverings are not considered personal protective equipment (PPE) and are not intended to be used when workers need PPE for protection against exposure to occupational hazards. As such, OSHA’s PPE standards do not require employers to provide them.…
Continue Reading OSHA Guidance on Wearing Masks in the Workplace
What to Do When Scared Workers Don’t Report to Work Due to COVID-19
We are pleased to share a recent SHRM article, “What to Do When Scared Workers Don’t Report to Work Due to COVID-19,” with quotes from Robin Samuel. This articles discusses several topics including employee’s legal rights and how to respond to an essential worker’s fear of returning to work.
Click here to view the article.…