Déjà Vu: Sixth District Court of Appeals Resolves Suspending OSHA COVID-19 “Emergency Standard” for large employers


Robert F. Kennedy, Jr. noted that democracy is messy and tough.

The serial litigation over COVID-19 and what the federal government can and should get employers to do about it illustrates this.

Late on Friday, December 17, 2021, a three-judge panel from the U.S. Court of Appeals for the 6th an order this affects most US employers with 100 or more employees.

In a 2: 1 cross-party decision, the court resolved the revived since the 6th, requiring insured employers with 100 or more employees that their employees (1) are fully vaccinated against COVID-19 or (2) wear face protection approved in the workplace and carry out weekly COVID-19 tests at the workers’ expense.

When the ETS was published on November 5, 2021, the labor protection authority of the Ministry of Labor (“DOL”) gave employers little time to react: They imposed deadlines for compliance with the 5th – the first is now academic and the second is only 15 days full of holidays removed.

The DOL recognizes according to a press release from 18. [ETS’s] Fulfillment dates “.

However, his discretion only goes so far. What – in a less urgent context – could indicate humor, says the DOL: “[t]o Allow employers sufficient time to meet requirements, OSHA will not pre-issue allegations of non-compliance with ETS requirements 10. January and will not issue any quotes for non-compliance with the test requirements of the standard beforehand February 9as long as an employer “- according to the judgment of the DOL -” makes reasonable efforts to comply with the standard. ”

OSHA offers assurances that it will “work closely with the regulated community to provide compliance assistance,” but it and the insured employers should be ready to move quickly.

What should big employers do now?

You can find an overview of the insured person and the corresponding obligations in our article dated November 5, 2021. The ETS is at least for the moment fully in force and effective again, although the deadlines by which the employers concerned have to comply are thus obvious been postponed (though not much).

Vigilant insured employers should therefore be better prepared for:

  1. Adopt a COVID-19 politics which in a relevant part requires the insured employees to receive their second Pfizer or Moderna syringe or a single dose of the Johnson and Johnson syringe by January 10, 2022. To support our customers in this, we have developed OSHA-compliant guideline templates that are tailored to the specific needs of the customer.
  1. Determine vaccination of employees status and develop a Roster of which employees are vaccinated, which employees have not and for which employees cannot be tested for 90 days due to a recent COVID-positive diagnosis.
  1. numbers employee (on and after January 10th) for up to 4 hours of paid vacation per shot for an employee who misses work to get the vaccine and numbers for a “reasonable time” for employees to recover from the side effects of the vaccine for the missed working hours.

For the time spent on vaccination, the employer must grant this paid vacation without taking the employee’s sick leave or PTO.

For the recovery time from side effects, the employer can require the employee to take sick leave or PTO, but must pay new money when the employee’s sick leave or PTO credit has been used up.

  1. Provide specific information to employeessuch as the employer’s vaccination policy, the procedure for determining vaccination status, the vacation pay the employee is entitled to for the vaccine, the procedure for reporting positive COVID-19 tests, and the procedures for applying for records.
  1. report work-related COVID hospitals to OSHA within 24 hours and work-related COVID deaths to OSHA within 8 hours.

Prudent employers will adopt and publish a human resources policy that takes all of these requirements into account to ensure that their employees understand them and to try to avoid misunderstandings that can lead to disruptive workplace conflicts and / or costly litigation.

Could ETS be postponed again?

The ETS was a prime example of the complexity and occasional difficulty of government.

It was issued on November 5th by OSHA (in the executive branch) on the basis of federal law (based on the US Congress in the legislature).

The U.S. Fifth District Court of Appeals (in the Legal Department) suspended him the next day and renewed its ruling on November 12. Several lawsuits against the ETS have been filed in federal appeals courts across the country under another federal court (again the Legislature), which were then consolidated before the Sixth Circle.

The sixth circle is unlikely to have the final say on the legality of the ETS. More than 30 stakeholders and companies have challenged the ETS in courts across the country. Several of these organizations have vowed to see the Supreme Court review the decision of the Sixth District Court.

As we alluded to in our November 16, 2021 article, the United States Supreme Court might weigh things up before all is said and done. Any request for intervention by the Supreme Court is likely to be received before the January 10 enforcement deadline.

In the meantime, all insured employers, if they have not already done so, should take steps to meet the essential preliminary requirements of the ETS within the next few weeks (and certainly by January 10th).

In the meantime, the Supreme Court could intervene or mask the howls of protests from employers that they have to deal with such annoying obligations over the holidays at short notice in the midst of the emerging Omicron variant, the DOL could cause the scheduled dates to be postponed and issue quotations.

But given the cumbersome and somewhat surprising development of the ETS, we wouldn’t rely on it.


© 2021 Ward and Smith, PA For more information on the issues described above, please contact Chris S. Edwards, S. McKinley Gray, III or Grant B. Osborne.

This article is not intended and should not be relied upon as providing legal advice in any particular circumstance or fact. No action should be taken in reliance on the information contained in this article without the advice of an attorney.

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