By A. Scott Hecker, Brent I. ClarkJames L. Curtis, Benjamin D. Briggs, Mark A. LiesAdam R. YoungPatrick D. Joyce, Daniel R. Birnbaum, and Craig B. Simonsen

Seyfarth Synopsis: OSHA has withdrawn its private employer COVID-19 Vaccination and Testing ETS, effective Tuesday, January 25, 2022.

On Tuesday, January 25, 2022, the federal Occupational Safety and Health Administration (“OSHA”) announced the withdrawal of its COVID-19 Vaccination and Testing Emergency Temporary Standard (“ETS”). The Federal Register posted an advanced copy of the notice for public inspection ahead of its official publication on January 26, 2022.

OSHA’s ETS had a long and winding road to withdrawal, having been stayed almost immediately by the U.S. Court of Appeals for the Fifth Circuit ­­– the rule, published on November 5, 2021, was enjoined the next day. The U.S. Court of Appeals for the Sixth Circuit lifted that stay, which led petitioners to file emergency applications with the U.S. Supreme Court to re-stay the ETS. After hearing argument on those applications on January 7, 2022, the U.S. Supreme Court re-stayed the ETS in an opinion issued on January 13.

No longer able to enforce the ETS, OSHA needed to decide whether to continue to pursue a decision on the merits before the Sixth Circuit. Even if OSHA received a favorable ruling before the Sixth Circuit, long-term success seemed unlikely, given the Supreme Court’s denunciation of the ETS’s overbroad scope. By law, the ETS expires on May 5, 2022, leaving little time to conclude merits proceedings before both the Sixth Circuit and the Supreme Court. Further, OSHA may be concerned about the Supreme Court issuing a merits decision that may limit OSHA’s ability to issue new ETSs in the future.

In the end, OSHA determined to pursue alternative avenues to address alleged COVID-related hazards. OSHA explicitly advised that it “is not withdrawing the ETS as a proposed rule,” meaning it could continue to pursue a broad, permanent COVID-19 or infectious disease standard. A permanent COVID-19 or infectious disease standard would entail a lengthy and contentious notice and comment period, and likely more litigation. But, for now, it appears “[t]he agency is prioritizing its resources to focus on finalizing a permanent COVID-19 Healthcare Standard,” so the likelihood of any COVID-19 standard based on the withdrawn ETS is unclear.

We expect OSHA to continue inspecting workplaces for COVID-19 hazards and citing employers for violations of existing OSHA standards that could implicate COVID (e.g., PPE, respiratory protection, sanitation, bloodborne pathogens, employee access to medical and exposure records, and recordkeeping/reporting) or use the OSH Act’s General Duty Clause, all while continuing to execute on its COVID-19 National Emphasis Program. OSHA may also pursue a new, more targeted emergency standard, which the Supreme Court seemed to sanction in its January 13, 2022 opinion.

The COVID-19 landscape continues to shift, so please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team for more information on this or any related topic. You can also receive additional insights from Seyfarth subject matter experts by registering for the Firm’s January 27, 2022 webinar, “What Now? COVID-19 Vaccination’s Ever-Shifting Compliance Landscape.”

By Ronald S. Gart and Christopher A. Sickles

Seyfarth Synopsis: Pursuant to the Mayor’s Order 2021-148 (the “Order”), beginning on January 15, 2022, the District of Columbia has required certain businesses to verify that all patrons aged 12 and over have received at least one dose of the COVID-19 vaccine. Beginning on February 15, 2022, all patrons must show proof that they have received at least two doses of the COVID-19 vaccine.

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Businesses subject to the Order are required to (i) display signage alerting patrons of the vaccination requirement (sample signage is available at vaxdc.dc.gov) and (ii) verify its patrons’ vaccination status before allowing entry. Patrons may furnish the following information to verify vaccination status: (i) a CDC issued vaccination card (or a photocopy or digital copy thereof); (ii) a record of immunization from a health care provider or public health authority; (iii) a report from a COVID-19 verification mobile application (e.g., VaxYes, Clear, Excelsior, MyIR); or (iv) a World Health Organization Vaccination Record. Per the Order, businesses do not need to retain a patron’s record of vaccine status or a record of the verification process.

Covered Establishments

Pursuant to the Order, the following types of businesses must adhere to the aforementioned requirements:

  • Indoor food and drink establishments (such as restaurants, nightclubs, taverns, food halls/courts, breweries, wineries, and distillery tasting rooms, seated dining halls, restaurants, and cafes located in museums, libraries, hotels, and other public venues);
  • Indoor cultural and entertainment establishments (such as concert/live entertainment venues, sporting venues, movie theaters, pool and billiard halls, bowling alleys, cigar and hookah bars, and adult entertainment venues);
  • Indoor exercise and recreational facilities (such as gyms and fitness studios); and
  • Indoor event and meeting establishments (such as hotel meeting rooms, banquet halls, conference center meeting facilities, event/banquet halls located in museums and libraries, convention centers, auditoriums, and shared work facilities when hosting events).

Establishments Excluded from the Order

There are several ambiguities with respect to the types of establishments that are subject to the Order. For example, non-public fitness centers can typically be found in hotels, office buildings, and apartments. As such, are these uses–which could be considered gyms or fitness studios– subject to the vaccine entry mandate? In an effort to answer such questions and provide the public with further clarity on the vaccination entry requirement, DC Health has created and published the Guidance and a FAQ (the “FAQ”). According to the FAQ, gyms and fitness facilities operating for the sole use of individuals residing or working in that specific building are exempt from the vaccine entry mandate. The FAQ lists several other types of establishments which are deemed to be exempt from the vaccine verification requirement (many of which are explicitly included in the Order), including the following:

  • Retail establishments;
  • Grocery stores, farmer’s markets, and food establishments that provide charitable food services;
  • Houses of worship;
  • Hotels, except meeting rooms, ballrooms and hotel restaurants and bars;
  • Homeless shelters and other human services facilities;
  • Health care facilities and pharmacies;
  • Private meeting spaces in office buildings or residential buildings;
  • Gyms and Fitness Facilities operating for the sole use of individuals residing or working in that specific building; and
  • Law enforcement buildings and government offices such as the Department of Motor Vehicles.

The Order is intended to cover venues and establishments where people typically gather, and the guiding principle for determining whether the mandate applies to a particular establishment is whether that establishment is open to the general public or whether outsiders who typically would not be present at the venue are invited in (e.g., an event held within a company’s conference space that is open to outside registrants).

It is important to note that if an establishment that is otherwise exempt from the vaccine entry mandate conducts a non-exempt activity, the vaccine requirement will apply. For example, if a house of worship is rented for a non-religious purpose, a museum hosts a gala, or a public library or a retail bookstore hosts an indoor event, proof of vaccination will be required for entrants.

Individuals Excluded from the Order

Expressly excluded from the mandate are individuals that only briefly enter an establishment (for example, to use the restroom or collect a carry-out order) and individuals who are either medically exempt or unable to receive the vaccine out of a sincerely held religious belief. Furthermore, the vaccine requirement does not apply to employees of covered establishments, just the patrons thereof.

Penalties for Non-Compliance

As set forth in the FAQ, relevant District agencies, such as DC Health, DC Alcoholic Beverage Regulation Administration, and DC Department of Consumer and Regulatory Affairs, will conduct spot checks to ensure that businesses are appropriately complying with the Order. Businesses that fail to make good faith efforts to comply will be subject to enforcement actions, including civil fines of not more than $1,000 and/or suspension or revocation of business licenses.

In accordance with the above, DC Alcoholic Beverage Regulation Administration recently released a citation schedule for violations of the Order by alcohol-licensed establishments (such as bars and restaurants), which are front and center in terms of establishments affected by the vaccine entry mandate. Consequences for violations of the Order for these establishments are as follows:

  • First offense: Verbal Warning
  • Second offense: Written Warning
  • Third offense: $1,000 fine
  • Fourth offense: $2,000 fine
  • Fifth or Subsequent offense: Investigative Report submitted to DC liquor board and subsequent hearing (the board has the power to suspend or revoke licenses)

As of today’s date, one establishment has already been cited for not following the requirements set forth in the Order. A list of establishments that have been issued warnings or citations for failure to comply with the Order will be published by DC Alcoholic Beverage Regulation Administration every Tuesday on an ongoing basis.

By James L. CurtisBrent I. ClarkBenjamin D. BriggsMark A. Lies, Jeryl L. Olson, Patrick D. Joyce, Adam R. Young, A. Scott Hecker, and Craig B. Simonsen

Seyfarth Synopsis: The U.S. DOL and U.S. EPA have published their 2022 increases to civil penalties.

We have blogged previously about the annual adjustments to the maximum civil penalty dollar amounts for OSHA and EPA violations. The agencies have now finalized the 2022 inflation adjustments, which increase the penalties yet again.

Under the 2022 rule, the new maximum OSHA civil penalties will be:

2021 Penalties 2022 Penalties
Other than Serious Violations: $13,653 $14,502
Serious Violations: $13,653 $14,502
Repeat Violations: $136,532 $145,027
Willful Violations: $136,532 $145,027
Failure to Abate (Per Day): $13,653 $14,502

The new OSHA penalty amounts are applicable to OSHA citations issued after January 15, 2022, for violations occurring after July 15, 2021. In terms of a percentage increase (6.2%), 2021 to 2022 is the largest increase in base penalty amounts since the yearly increases started.

Readers familiar with EPA’s penalty structure know that environmental statutes typically set out a “per day” penalty, as well as a maximum statutory penalty. However, certain statutes allow for civil judicial enforcement that does not carry a maximum statutory penalty.

Under the 2022 rule, the new maximum EPA civil penalties will be:

2021 Penalties 2022 Penalties

Clean Air Act                        Daily:

Maximum (per violation):

$48,762 –  $102,638

$390,092

$51,796 –  $109,024

$414,364

Clean Water Act                   Daily:

Maximum (per violation):

$22,584 – $56,460

$282,293

$23,989 – $59,973

$299,857

RCRA                                    Daily: $61,820 – $102,638 $62,689 – $109,024
CERCLA                               Daily:
(including EPCRA)
Maximum (per violation):

$59,017

$177,053

$62,689

$188,069

EPA’s 2022 penalties are effective for violations that occurred after November 2, 2015, where the penalty was assessed on or after January 12, 2022. EPA’s 2021 penalties remain effective for violations that occurred after November 2, 2015, where the penalty was assessed on or after December 23, 2020 but before January 12, 2022.

EPA and DOL are required to continue to adjust maximum penalties for inflation by January 15 of each new year.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Adam R. Young, Patrick D. Joyce, A. Scott Hecker, Brent I. Clark, James L. Curtis, Benjamin D. BriggsMark A. Lies, Bradley D. Doucette, and Ilana R. Morady

Seyfarth Synopsis: On January 13, 2022, the Supreme Court stayed enforcement of OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard (“ETS”), pending further litigation in the U.S. Court of Appeals for the Sixth Circuit.  The Court asserted that OSHA has failed to show evidence of “grave danger” in many industries, and absolves employers of the requirement to ensure that unvaccinated employees engage in weekly testing. Separately, the Court voted to uphold the CMS mandate.

We previously published a legal update regarding the Supreme Court’s extraordinary Special Session where it held oral arguments addressing the Sixth Circuit’s decision to overturn the Fifth Circuit’s temporary stay of the ETS, pending a resolution on the merits.

In a 6-to-3 decision, the Supreme Court blocked the Biden Administration’s vaccine-or-testing rule for private businesses, a rule which requires virtually all employers with at least 100 employees to mandate workers be vaccinated or obtain a medical test at their own expense and time, as well as wear a mask in the workplace. The mandate applies to 84 million workers and, as the majority opinion asserts, is unlike anything Congress and OSHA have ever imposed.  The issue of the stay was before the Court, but not a final determination on the merits.  In reinstituting the stay, the Supreme Court called into question not only OSHA’s authority to issue a general standard, but rather to issue regulations affecting overall public health.

The majority’s decision turned on the reach of  OSHA’s occupational jurisdiction versus a broader public health measure.  “Administrative agencies are creatures of statute,” and the Court found that OSHA possesses only the limited workplace-related authority that Congress provided, not the authority to oversee and control overall public health.  The Court held that the authority to order nearly 84 million Americans to either obtain a COVID-19 vaccine, or undergo weekly testing at their own expense was not within the everyday exercise of OSHA’s power.  The majority’s opinion recognized the risk posed by COVID-19 but argued that COVID-19 is a universal risk and not specific or consistent across all covered workplaces.  Therefore, even though COVID-19 presents a risk within the workplace, the Court refused to extend the Agency’s power to allow it to regulate overall public health of employees.

Justices Gorsuch, Alito, and Thomas issued a concurring opinion finding that the ETS was unlawful as a Major Question that the constitution left to Congress to decide. The concurrence thereby focuses on the constitutionality of the ETS, rather than its permissibility under the OSH Act.  If this reasoning makes its way into the decision on the merits, it may be used to invalidate other OSHA standards and federal agency decisions.

Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan dissented, arguing OSHA does have authority to deal with emergency conditions, and that the stay limits the Agency’s response to protect worker safety from a disease that continues to mount.

Separately, in a 5-to-4 decision, the mandate for the Centers for Medicare & Medicaid Services was allowed to take effect.  This mandate requires vaccines for health care workers at hospitals and other medical facilities that participate in certain Federal programs.  Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Amy Coney Barrett dissented.

What Does This Mean for Employers?

The ETS remains stayed and returns to the Sixth Circuit for the decision on the merits.  The end of the per curiam opinion details the upcoming process:

OSHA’s COVID–19 Vaccination and Testing; Emergency Temporary Standard, 86 Fed. Reg. 61402, is stayed pending disposition of the applicants’ petitions for review in the United States Court of Appeals for the Sixth Circuit and disposition of the applicants’ petitions for writs of certiorari, if such writs are timely sought. Should the petitions for writs of certiorari be denied, this order shall terminate automatically. In the event the petitions for writs of certiorari are granted, the order shall terminate upon the sending down of the judgment of this Court.

With the ETS set to expire in May, it is unclear whether it will ever become law and again be enforced.  The government will need to determine whether to continue to press its merits case at the Sixth Circuit before a possible return engagement with the Supreme Court.  But the OSH Act’s General Duty Clause still regulates employers and requires them to address COVID-19 hazards in the workplace.  OSHA has cited many employers for COVID-19 hazards under the General Duty Clause, respiratory protection standard, and record-keeping regulations.  Employers should be mindful that they are still required to abate COVID-19 hazards, and can look to CDC and OSHA guidance.

To assist, we remind employers that Seyfarth has prepared an ETS Checklist, as well as a Chart comparing the ETS, the Safer Federal Workforce Task Force, COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors, and the Centers for Medicare & Medicaid Services, Medicare and Medicaid Programs; Omnibus COVID-19 Health Care Staff Vaccination Regulation. These materials are available for download under the “Additional Resources” section of this page.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team

By Benjamin J.Conley and Adam R. Young

Seyfarth Synopsis: The OSHA COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) will require unvaccinated employees to submit weekly COVID-19 testing results by February 9, 2022. New guidance from the Biden Administration could require employer health plans to reimburse the cost of at-home COVID testing in certain circumstances, creating confusion for employers on how the two mandates interact.

The ETS is current law, but the testing requirements may be stayed or blocked by current litigation in the Supreme Court. Assuming the ETS stays current law and is not blocked by the Court, the ETS deliberately permitted employers to require employees handle the cost of testing. The stated reason for that choice was to incentivize vaccination over testing. Many employers intend to comply with the ETS and weekly testing requirements by having employees do off-site testing: in-home antigen testing, free off-site testing from government agencies (while supplies last), or testing at paid third party providers.

Employers are now struggling to reconcile the payment terms of the ETS (allowing employers to make employees pay for the off-site testing), state laws requiring payment for medical examination, and the January 10, 2022 DOL, HHS and IRS announcement requiring employer health plans to pay for the cost of at-home testing (the “Health Plan Mandate”). The Health Plan Mandate requires health plans to pay for up to eight at-home antigen tests per month. (This builds on an existing mandate under the CARES Act/FFCRA that required health plans to cover testing by third-party healthcare providers), which has been in effect since March of 2020. .

For employers who plan to address the ETS’s weekly surveillance test requirement for unvaccinated employees with offsite testing, the Health Plan Mandate has a less direct impact on employers who sponsor fully-insured plans. In those plans, the employer is only responsible for the plan premium and the insurance carrier must pay the cost for any at-home tests. While the availability of free at-home tests may (a) make employees less likely to get vaccinated, and (b) ultimately drive up insurance premiums, those impacts are less direct and immediate.

For self-funded employers, the Health Plan Mandate has a more immediate impact in that employers are responsible for paying any claims for benefits (including the cost of reimbursing employees for at-home tests). Even so, we believe there are several mitigating factors (and some additional steps employers can take to further blunt the impact). Specifically:

  1. Health Plan Mandate Only Extends to Health Plan Participants. The Health Plan Mandate is a not an employer mandate. So, the mandate only extends to persons enrolled in the employer’s health plan. While this may still include a sizeable portion of the employer’s workforce, it would exclude persons who are covered under a spouse’s plan, for example. (Although the counter-argument here is that spouses enrolled in your employer group plan are eligible for free at-home tests, which may offset those employees not enrolled in your plan.)
  2. Plans May Require Attestation that Test is Not for Employment Purposes. The Health Plan Mandate permits plans to seek an attestation from participants that the test is intended for personal use and not for employment purposes. This provides some modicum of a deterrent against employees relying on the free at-home tests to satisfy their ETS weekly testing obligation, although it may be somewhat illusory. Specifically, it would be very difficult for a plan to determine whether an employee is in violation of the attestation. And even if the plan could make such a determination (e.g., because the employee admits openly that they are using the free, plan-paid tests for employment purposes), the attestation would be covered under HIPAA privacy protections. This means the plan would be prohibited from sharing the data with the employer, and the employer would be unable to take any adverse employment actions against the employee. The employee could face adverse consequences under the plan, however, up to and including termination of coverage.
  3. Individualized Clinical Assessment Still Necessary for Other Forms of Testing. The Health Plan Mandate makes clear that outside of at-home tests, health plans can still limit coverage for other forms of tests to situations where the participant has received an individualized clinical assessment by a health care provider that a test is appropriate. Employers may require third-party-administered antigen or molecular (e.g. PCR) tests to satisfy the weekly requirement. While this restriction would address the issue of employees relying on at-home tests to satisfy the weekly testing mandate, it is feasible that employees would be able to obtain a doctor’s order for other forms of testing, and the health plan would still be obligated to cover those costs under the pre-existing CARES Act/FFCRA requirements. Given the ubiquity of the Omicron variant at present, most doctors can plausibly order a test on the basis of individuals being in a high-transmission area.
  4. Employers Could Consider Implementing a Vaccine Surcharge. Before the announcement of the ETS, many employers were considering implementing a health plan premium surcharge on unvaccinated workers (and while interest waned in the wake of the ETS announcement, many moved forward with their plans). The new Health Plan Mandate may cause a resurgence of interest though, given the risk that unvaccinated workers will the health plan (properly or otherwise) to offset the cost of their weekly testing obligation. For more information on the legal parameters surrounding such a vaccination surcharge, check out our legal alerts here and here.

We will continue to monitor developments in this space, including any updates based on the Supreme Court’s ruling on the ETS.

By Melissa A. Ortega, Bradley D. Doucette, Brent I. Clark, Benjamin D. Briggs, Adam R. Young, Patrick D. Joyce, A. Scott Hecker

Seyfarth Synopsis: In an unusual special session, on January 7, 2022, the U.S. Supreme Court heard oral arguments regarding OSHA’s Vaccination and Testing Emergency Temporary Standard (ETS), which requires employers with 100 or more employees to mandate that their employees either receive a COVID-19 vaccination or undergo at least weekly COVID-19 testing and wear facemasks.

We previously published a legal update regarding the revival of the Occupational and Safety and Health Administration’s (“OSHA”) COVID-19 Vaccination and Testing Emergency Temporary Standard (“ETS”) by the U.S. Court of Appeals for the Sixth Circuit. Since the stay was dissolved in mid-December, and the ETS went back into effect, OSHA exercised its enforcement discretion to effectively reset the ETS’s compliance deadlines. OSHA is scheduled to begin enforcing all ETS provisions, except the testing requirement, on January 10, 2022, with testing required starting February 9, 2022.

Once the Sixth Circuit lifted the stay, multiple petitioners, including 27 states, filed emergency stay applications with the U.S. Supreme Court. Petitioners are requesting that the Court reinstitute the stay while the Sixth Circuit proceeds on the merits of the ETS. As alternative relief, some petitioners requested review before judgment by the Sixth Circuit and a decision on the legality of the ETS. Many amici curiae (friend-of-the-court) briefs were filed on both sides of the issue.

The matter was initially assigned to Justice Kavanaugh, who oversees the Sixth Circuit, but he referred the case to the full Court for review, and the Court scheduled a special oral argument session, which was held on January 7, 2022.

The following is a summary of the oral arguments and some key takeaways:

Applicants’ Arguments Highlight Agency Overreach of the ETS and Potential Economic Impact

Scott A. Keller presented the initial argument for the Applicants, a coalition of business groups known as the National Federation of Independent Business, generally arguing that OSHA does not have sweeping authority to publish and enforce a COVID-19 mandate covering nearly the entire U.S. workforce. He stressed the fiscal impact the mandate would have across the country, leading to significant job displacement and financial hardships, including business bankruptcies resulting from compliance costs and loss of workforce due to employees quitting to avoid the mandate. Applicants view the vaccine and testing requirements for businesses as a government overreach, noting that quasi-governmental entities such as the U.S. Postal Service and Amtrak had expressed concern and asked for some reprieve from the ETS.

The Justices’ questions predictably focused on whether the mandate was necessary to protect workers from the inarguable risk posed by COVID-19. A key question addressed in questioning by multiple Justices was “who decides”– i.e., who is in a better position to act in this situation, the Courts, Congress, OSHA, or some other entity? Applicants argued that unlike a traditional workplace hazard, such as sparks flying from a machine (an analogy suggested by one of the Justices), the virus is something that transcends the borders of the workplace and extends into the community, and therefore should not be under OSHA’s purview.  Applicants criticized the uniform, “one-size-fits-all” application of the mandate, arguing that whatever limiting line should be drawn on OSHA’s authority, the ETS crossed well beyond it. Applicants suggested that a narrower approach, such as targeting specific industries, might pass legal muster, but that was not the path OSHA chose and was not the question before the Court.

Encouraged by Justices Gorsuch and Kavanaugh, Applicants’ arguments also addressed the “major questions doctrine,” which counsels that Courts shall not defer to agencies’ statutory interpretations with regard to questions of great economic or political significance. Applicants argued that OSHA needs to have clear congressional authorization under this doctrine before issuing regulations such as the ETS.

Ohio’s Solicitor General, Benjamin M. Flowers, appeared for the Applicant as well, representing the many states who filed emergency stay petitions. Mr. Flowers fielded similar questions focusing on the scope of OSHA authority and furthered Applicants’ argument for an immediate stay.

Respondents’ Arguments Highlight OSHA’s Authority to Issue the ETS and the Necessity of the ETS to Protect Unvaccinated Workers from COVID-19

Solicitor General Elizabeth B. Prelogar presented the Biden Administration’s arguments, arguing that Congress charged OSHA with setting nationwide standards to protect the health and safety of employees throughout the nation, regardless of industry, and the ETS falls squarely within that authority. Exposure to COVID-19 in the workplace, Respondents argued, represents the biggest threat to workers in OSHA’s history.

Respondents staked a position that the “grave danger” posed by COVID-19 is to the unvaccinated. Respondents cited “overwhelming evidence” that grave danger exists anywhere employees gather together indoors.  While, Justice Kagan noted, people may choose whether to go to a baseball game and with whom they might attend such an event, they do not have similar control over their work environments.

Other Justices, particularly Chief Justice Roberts, questioned the government’s agency-by-agency approach to vaccine mandates, referencing the federal contractor mandate and the Centers for Medicare and Medicaid Services regulation, wondering whether the issue of vaccine rules should be considered more broadly. The Justices again discussed the major questions doctrine and suggested that Congress should re-issue statutory authority or clarify whether OSHA has plenary authority to regulate occupational safety and health.  In response, Respondents emphasized that Congress has acted by passing the OSH Act and charging the Agency with protecting employees from “grave dangers” in emergency situations.

Justice Alito asked Solicitor General Prelogar if the government would oppose a brief administrative stay while the Court continued its review of the emergency stay applications. While agreeing that the Court has that prerogative, the Solicitor General noted that a grave danger continues to exist and more lives are being lost every day. Justice Breyer frequently noted the recent uptick in COVID-19 cases, stating, e.g., “when they issued this order, there were 70 something thousand new cases every day. Yesterday, there were close to 750,000. If we delay it one day, if it were to have effect, 750,000 more people will have COVID who otherwise if we did not delay would not have.”

On the question of economic impact, Respondents explained that OSHA thoroughly considered these issues when making a decision to issue the ETS. OSHA found that, in other circumstances where COVID-19 vaccines had been mandated, there were substantial compliance among employees, and the concern that workers would leave in droves was misplaced and has not, in fact, played out. Respondents also argued that a similar number of vaccinated employees may leave the workplace if forced to work alongside unvaccinated colleagues. Respondents clarified that the threat of resignations likely would not occur until February 9 when the testing requirement comes into effect.

What Does This Mean for Employers?

Unless and until the Supreme Court orders the ETS stayed, it remains in effect, and employers should proceed with good faith efforts to comply.  OSHA will initiate enforcement concerning most of the ETS’s provisions on Monday, January 10, 2022; enforcement of the requirement that unvaccinated employees test at least weekly will begin on February 9, 2022.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Adam R. YoungPatrick D. Joyce, Matthew A. Sloan, and Craig B. Simonsen

Seyfarth Synopsis: According to the Bureau of Labor Statistics, the number of fatal work injuries in 2020 was the lowest since 2013.

There were 4,764 fatal work injuries recorded in the United States in 2020, a 10.7% decrease from 5,333 in 2019. Of course, the number of fatalities is an absolute figure; while the working population continues to grow, the fatality rates continue to decline. The fatal work injury rate in 2020 was 3.4 deaths per 100,000 full-time workers, down from 3.5 per 100,000 full-time workers in 2019 and a high of 3.6 per 100,000 full-time workers in 2016.

The largest workplace killer, in absolute terms, was “Transportation Incidents,” with 1,778 fatalities in 2020. Intentional workplace violence such as homicides and suicides resulted in 651 fatalities, and exposure to harmful substances or environments led to 672 worker fatalities in 2020, the highest figure since the series began in 2011, according to the BLS. Within this category, unintentional overdose from nonmedical use of drugs accounted for 57.7% of fatalities (388 deaths), up from 48.8% in 2019.  While neither workplace violence nor overdosing from drugs and alcohol are regulated by OSHA standards, employers should develop programs to address these very real hazards.

Notably, in 2020, workers age 55 and older accounted for over 33% of workplace fatalities, despite being only 25% of the workforce. According to the CDC, this might be explained by workers older than 55 already having underlying pre-existing conditions that may be exacerbated by workplace conditions.

These declining fatality numbers demonstrate the benefits of qualified safety and health professionals in the workplace, safety and health programs, new safety technologies, widespread employee training, and sound workplace safety legal advice.

For more information on this or any related topic please contact the author, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By: Adam Young, Matthew A. Sloan, and Ilana R. Morady

Seyfarth Synopsis: The CDC’s shorter isolation and quarantine requirements will allow employers to get many COVID-19 positive employees and exposed, unvaccinated employees back to work 5 days sooner.   

On December 28, 2021, the CDC shortened the recommended isolation period for all persons with COVID-19.  Under the revised guidance, individuals only need to isolate for 5 days instead of 10 days following the onset of symptoms or a positive test if asymptomatic or symptoms are resolving after those initial 5 days.  The CDC also recommends that individuals continue to wear a face mask around others for at least 5 days following this initial 5-day isolation period.  These recommendations previously only applied to essential workers.

The CDC also updated its quarantine recommendations for those exposed to COVID-19. Previously, the CDC advised that individuals who were fully vaccinated did not need to quarantine after contact with someone who had COVID-19, unless experiencing symptoms.  Now, for individuals who are unvaccinated or are more than six months out from their second mRNA dose (or more than 2 months after the J&J vaccine) but not yet boosted, the CDC recommends quarantining, if feasible, for 5 days followed by strict mask use for an additional 5 days.  If a 5-day quarantine is infeasible, the CDC explains it is “imperative” that the exposed individual wear a well-fitting mask at all times when around others for 10 days after exposure. Testing on day 5 is recommended.

Individuals who have received their booster shot, or are less than 6 months out from their primary Pfizer or Moderna vaccine (or less than 2 months out from the J&J vaccine) however, do not need to quarantine following an exposure, but should wear a mask for 10 days after the exposure, and get tested on day 5 if possible.

These changes come during a particularly fraught stage of the pandemic, with the Omicron variant spreading, significant numbers of Americans testing positive, a growing risk of labor shortages, renewed disruption to the economy, and widespread exhaustion from further disruption to daily life.  As CDC Director Rochelle Walensky reassured when the updated guidance was announced: “These updates ensure people can safely continue their daily lives.”

For employers in most jurisdictions, the updated guidance likely means that policies requiring employees to isolate/quarantine for 10 or more days can be revised to align with the CDC’s updated recommendations.  Revising these policies will allow many employers to get employees back to work sooner. However employers should confirm that the relevant state and local authorities have adopted CDC’s recommendations. The CDC admonishes that its recommendations  do not supersede state, local, tribal, or territorial laws, rules, and regulations.

Given the transmissibility of the Omicron variant, employers should remain vigilant in keeping these and other employees at least six feet apart, particularly in break rooms and other areas where employees may be required to remove their mask temporarily (to eat or drink, for example).

Employers could also update their policies if they previously did not require fully vaccinated employees to quarantine following exposure to COVID-19.  Employers must also comply with stricter state and local rules.  Before making any changes, employers should check to ensure that there are no state or local rules requiring different isolation periods and masking protocols, although we anticipate that several of these jurisdictions will begin to align with the updated guidance.

For more information on these changes and all things COVID-19, please contact the authors or your Seyfarth attorney.

By: Adam Young, James L. Curtis, Brent I. Clark, Mark A. Lies, Patrick D. Joyce, and A. Scott Hecker

Seyfarth Synopsis: On January 7, 2022, in an extraordinary open session, the Supreme Court will reconsider the dissolved stay of the OSHA ETS, as well as the injunctions blocking the CMS healthcare vaccination mandate in 25 states.

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As we previously blogged, on December 17, 2021, a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of the ETS in a 2-1 order.

But the litigation drama continues.  Shortly after the Sixth Circuit overturned the ETS stay, petitioners filed numerous emergency stay applications with the United States Supreme Court.  Justice Brett Kavanaugh, who oversees the Sixth Circuit, directed the government to file opposition papers defending the stay by December 30, 2021.  In an unusual and extraordinary action, the Supreme Court announced that it will hear oral arguments on the stay of the federal Occupational Safety and Health Administration’s COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS), as well as the healthcare worker mandate through the Centers for Medicare and Medicaid Services (CMS), at a January 7, 2022 special session.  The proceeding will place the Supreme Court in the middle of a simmering debate on the validity of vaccine mandates covering private employers, and the Court’s decision may foretell the final outcome and survival of two of the major private employer vaccine mandates.  The Court will likely consider whether there is:

  • “reasonable probability” that four Justices will agree to review the merits of the case;
  • a “fair prospect” that a majority of the Court will conclude that the decision below on the merits was incorrect; and
  • irreparable harm from denying the stay.

Justice Kavanaugh may find it appropriate to engage in a balancing test to consider the parties’ harms and the public interest.

While we await the Supreme Court’s decision concerning the ETS and the CMS regulation stay applications, the Sixth Circuit will continue to consider the merits of the ETS.  In the meantime, OSHA’s ETS is currently in effect, and employers must work toward compliance.  OSHA has effectively reset the ETS’s compliance deadlines to January 10, 2022 (originally December 6, 2021) for the majority of the ETS’ requirements, and February 9, 2022 (originally January 4, 2022) for employers to begin testing employees who are not fully vaccinated, to account for its stayed period.  The 21 OSHA State Plan states have been instructed to adopt the federal ETS or release their own ETS, at least as protective as the federal ETS, by January 24, 2022, to take effect within 30 days.

The Biden Administration’s novel strategy to get more Americans vaccinated has seen significant litigation surrounding all three of its legal mandates for private sector employers: the aforementioned CMS regulation and ETS, as well as the federal contractor mandate.  The federal contractor mandate has been preliminarily enjoined on a nationwide basis by federal district courts, and pending the upcoming Supreme Court oral argument, the CMS mandate similarly is enjoined in 25 states.

Please reach out to your trusted Seyfarth counsel to discuss the ever-changing statuses of OSHA’s ETS and the CMS vaccine mandate.

By A. Scott Hecker, Adam R. Young, and Patrick D. Joyce

Seyfarth Synopsis: On December 17, 2021, a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit dissolved its sister Fifth Circuit’s stay of the Occupational Safety and Health Administration’s COVID-19 Vaccination and Testing Emergency Temporary Standard in a 2-1 order.  Shortly thereafter, OSHA updated its website indicating it would exercise “enforcement discretion” in extending compliance deadlines and potentially providing enforcement relief for employers who make “good faith” efforts to comply.

We previously published a legal update regarding the U.S. Court of Appeals for the Fifth Circuit’s blistering November 12, 2021 opinion extending its November 6 stay of the Occupational Safety and Health Administration’s (“OSHA”) COVID-19 Vaccination and Testing Emergency Temporary Standard (“ETS”).

Since the entry of that stay, a November 16, 2021 Judicial Panel on Multidistrict Litigation lottery consolidated the various legal challenges to OSHA’s ETS before U.S. Court of Appeals for the Sixth Circuit.  On Wednesday, December 15, an evenly-split Sixth Circuit denied petitions for initial hearing en banc, indicating that a traditional three-judge panel would hear the ETS case.  Chief Judge Jeffrey S. Sutton filed a lengthy dissent to the Court’s en banc denial, focused primarily on the ETS’s legal viability and on why the stay should be maintained.  Speculation suggesting Chief Judge Sutton had read the tea leaves and knew the stay would be lifted seems to have been confirmed by the Friday, December 17, order by the three-judge panel lifting the stay.

Writing for the majority, Judge Jane B. Stranch dissolved the Fifth Circuit’s stay, noting that “[i]n emergency circumstances, OSHA ‘shall’ promulgate an ‘emergency temporary standard’ that takes ‘immediate effect.’”  Echoing arguments from prior opinions upholding vaccine mandates, Judge Stranch suggested that “[t]he ETS does not require anyone to be vaccinated.  Rather, the ETS allows covered employers – employers with 100 or more employees – to determine for themselves how best to minimize the risk of contracting COVID-19 in their workplaces.”  Employers can choose to have workers who are not vaccinated follow other risk mitigation protocols like masking and weekly testing, so it is “[t]he employer – not OSHA – [that] can require that its workers get vaccinated.”

Disagreeing with the Fifth Circuit, the Sixth Circuit affirmed OSHA’s statutory authority to address infectious diseases, including those not specific to the workplace.  Further, the Sixth Circuit found the “major questions doctrine . . . inapplicable . . . because OSHA’s issuance of the ETS is not an enormous expansion of its regulatory authority.”  Finding “no threshold issues that OSHA exceeded its authority under the statute,” the Sixth Circuit then evaluated the legal challenges to the ETS, focusing on the statutory requirements for OSHA to issue and ETS, i.e., OSHA must determine that a grave danger exists and that the ETS is necessary to protect workers from that danger.

The Court determined that OSHA’s alleged delay in issuing its ETS “does not undermine the state of emergency that this unprecedented pandemic currently presents.”  Referring to the standard’s lengthy preamble, the Court opined that “it is difficult to imagine what more OSHA could do or rely on to justify its finding that workers face a grave danger in the workplace” from COVID-19.  Regarding necessity, Judge Stranch rebuffed some petitioners’ argument that

the word “necessity” mandates that OSHA’s standard may use only the means that are absolutely required to quell the grave danger.  Taken seriously, such a cramped reading of the statute would require OSHA to prognosticate an emergency and devise the most narrowly tailored ETS to entirely remove the grave danger from the workplace.  But in virtually every emergency situation that would require an ETS, no precaution proposed by OSHA could ever be 100 percent effective at quelling the emergency.  Courts have acknowledged this practical reality, explaining that ETS standards may necessarily be somewhat general . . . .  It cannot be expected that every procedure or practice will be strictly necessary as to every substance, type of use, or plant operation.  OSHA need only demonstrate that the solution it proposes is necessary to alleviate a grave risk of worker deaths during [the ETS’s] six month term.  (internal citations and quotation marks omitted)

The Court found little likelihood that petitioners would succeed with their constitutional arguments concerning the Commerce Clause and non-delegation doctrine.  Discounting petitioners’ assertions of irreparable harm (in part by circling back to the risk-mitigation options available to employers under the ETS), the Sixth Circuit weighed the irreparable injury factors in favor of the government and the public interest.

In response to the Sixth Circuit’s order, OSHA updated its ETS website:

OSHA is gratified the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of the Vaccination and Testing Emergency Temporary Standard.  OSHA can now once again implement this vital workplace health standard, which will protect the health of workers by mitigating the spread of the unprecedented virus in the workplace.

To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS.  To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so 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.

Key for employers’ compliance efforts is that OSHA has effectively reset the ETS’s compliance deadlines to January 10, 2022 (originally December 6, 2021) for the majority of the ETS’ requirements, and February 9, 2022 (originally January 4, 2022) for employers to begin testing employees that are not fully vaccinated, to account for its stayed period.

One more wrinkle for employers to consider is that immediately following the stay lifting, numerous emergency stay petitions were filed with the U.S. Supreme Court, where Justice Kavanaugh oversees the Sixth Circuit.  Petitioners are requesting that the Court reinstitute a stay while the merits case proceeds.  Justice Kavanaugh will determine how and when that process unfolds.

The Sixth Circuit’s order does not finally resolve the pending legal challenges to the ETS, and the Sixth Circuit will continue to consider the merits of the standard.  But with the ETS back in effect – at least for today – employers should work toward compliance, reasonably and in good faith, targeting the January 10 and February 9 dates to meet the standard’s requirements.  Seyfarth has resources, like our compliance checklist, to assist you as you reinvigorate your ETS-compliant policies.

Please reach out to your trusted Seyfarth counsel to discuss the ever-changing status of OSHA’s ETS.