OSHA issued its Emergency Temporary Standard (ETS) in early November. A series of challenges quickly ensued, resulting in a stay of the ETS and a consolidation of the cases before the Sixth Circuit. On December 17, 2021, the Sixth Circuit lifted the stay. OSHA has indicated that it will delay enforcement of the ETS deadlines
On December 17, 2021, the Sixth Circuit Court of Appeals dissolved the stay previously placed on OSHA’s so-called “vaccinate or test” Emergency Temporary Standard (ETS). Consequently, covered employers with 100 or more employees will now be required to comply with the ETS under the newly announced deadlines of January 10, 2022 for all non-testing requirements…
As noted in our prior post regarding the Sixth Circuit handling the challenges to the OSHA Emergency Temporary Standard (the ETS), several of the parties targeting the OSHA ETS filed or joined various petitions requesting an initial hearing en banc. On December 15, 2021, the Sixth Circuit denied the various petitions for initial hearing en banc because there was not majority support of the active judges. It appears that it was a very close call – of the 16 active judges, eight were for en banc and eight were against it. As a result, the case will proceed before the typical three-judge panel. The three judges have been assigned; however, we do not know who they are at this point.
Judge Moore issued a concurring opinion recognizing the inefficiencies that go along with an en banc hearing. The concurrence noted that the case “require[s] focused consideration by a devoted panel,” and that an en banc hearing “would have strained the resources of the sixteen active judges.”
There are two dissenting opinions. Chief Judge Sutton’s dissent recognizes that, with respect to the initial hearing en banc, “[t]his is an extraordinary case, suitable for an extraordinary procedure.” But he also notes that the Sixth Circuit “likely will not be the final decisionmakers in this case, given the prospect of review by the U.S. Supreme Court.”
Continue Reading OSHA ETS: Sixth Circuit denies initial hearing en banc
On November 16, 2021, the Sixth Circuit was selected via a lottery to hear the consolidated challenges made against the recent OSHA Emergency Temporary Standard (the ETS). As background, on November 5, 2021, OSHA published the ETS that would require most private employers with 100 or more employees to establish either (1) a mandatory vaccination policy requiring that all covered employees be fully vaccinated against COVID-19, or (2) a vaccination policy that requires that employees choose between being fully vaccinated or submitting to regular and recurring COVID-19 testing.
While all eyes had previously been on the Fifth Circuit, it is now the Sixth Circuit that’s in the spotlight. Not surprisingly, there has been a flurry of activity in the case. There are currently two main issues pending before the court that will certainly shape the dispute: (1) several petitioners have asked for an initial hearing en banc (i.e., requesting that the full court – and not just a three-judge panel – decide the case initially); and (2) the government has asked the court to dissolve the Fifth Circuit’s stay.
Continue Reading OSHA COVID-19 rule: Sixth Circuit case status update
As we have previously reported, several states, including New Jersey, New York, Connecticut and Pennsylvania, now require employees, customers and/or the public to wear face coverings. As we have also written about, in other states, like California, local governments are leading the way. For example, Bay Area counties Sonoma, Marin, San Francisco, San Mateo, Alameda, and Contra Costa all require face coverings to some degree. Since then, additional California municipalities have also joined, including San Bernardino, Riverside, Beverly Hills, Burbank, Carson, Inglewood, Los Angeles, Long Beach and Pasadena. Links to our prior publications on these location-specific mandates can be found below.
Other states and municipalities continue to follow suit. As of April 17, employees of essential businesses in Hawaii must wear face coverings. On April 18, Maryland established a similar requirement for employees, as well as customers over nine years of age. Like California, in states that are not currently requiring face coverings, some local governments have taken the initiative to establish their own requirements. For example, in Illinois, Cicero, Glenview, Highland Park, Morton Grove, Niles, Skokie and Wilmette have each implemented some type of face covering requirement. Municipalities in other states that have joined the movement include Laredo, Texas; Miami, Florida; Northampton, Massachusetts; and Chickasaw, Oklahoma.
Continue Reading Employers must face it: Face covering requirements growing across states and municipalities
As discussed in our client alert addressing the growing COVID-19 crisis, U.S. employers face a number of complicated legal issues as they prepare for the possibility that their workforces will be impacted by the current emergency. In support of that effort, employers should begin preparing to address the following issues.
Before turning to those issues, as mentioned in our previous client alert, employers should strive to make the guiding principles behind all employer responses in this area a combination of compassion for employee impacts and reasonable flexibility. State and federal laws provide many minimum standards, but the best thing an employer can do in the midst of this growing epidemic is to take care of its people. Doing so is not just the right thing to do, but it also encourages employees to be reasonable in return and it mitigates the risk of future conflict with employees or legal exposure.Continue Reading Employer planning focus points for U.S. impacts of novel coronavirus (COVID-19)
The Occupational Safety and Health Administration’s (OSHA) new reporting rule goes into effect August 10, 2016. Although it does not expressly address post-accident drug testing, OSHA’s commentary related to the new rule makes clear that such testing will now be squarely in the agency’s crosshairs. Accordingly, many employers may want to consider updating their drug-testing policies to ensure OSHA compliance.
Continue Reading New OSHA Rule May Require Employers to Update Drug-Testing Policies
The Occupational Safety and Health Administration (OSHA) was busy this past summer, announcing a host of new enforcement priorities. Here we recap two: (1) combatting employee illness and injury at inpatient-care facilities; and (2) ensuring proper restroom access for transgender workers at all employer facilities.
Inpatient Care Employers Face an OSHA Inspection Ramp-Up
OSHA’s announced initiative regarding inpatient care facilities – e.g., hospitals and residential care/nursing homes – involves a plan by the Agency to:
- Expand the resources OSHA directs for inspections at these sites, and
- Direct inspectors to focus on five, recently identified “key hazard” areas: (1) musculoskeletal disorders related to patient and resident handling; (2) bloodborn pathogens; (3) workplace violence; (4) tuberculosis; and (5) slips, trips and falls.
An OSHA Directive to Regional Administrators and State Designees, which accompanied the press release announcing the Agency’s health care inpatient-facility initiative, provides guidance to OSHA investigators on how to detect each of the five, newly identified hazards. According to OSHA, these hazards are responsible for the bulk of all work-related employee illnesses and injuries occurring at hospitals and inpatient care facilities. Assistant Secretary of Labor for Occupational Safety and Health, Dr. David Michaels, has also advised that
“[v]irtually all of these injuries and illnesses are preventable,” and he warns:
It’s time for hospitals and the health care industry to make the changes necessary to protect their workers. Healthcare Release (emphasis added).
Continue Reading OSHA Sets Sights on Health Care Facilities & Transgender Restrooms