The Occupational Safety and Health Administration (OSHA) on November 4, 2021, issued its Emergency Temporary Standard (ETS), requiring all employers with 100 or more employees to choose between (1) implementing a mandatory COVID-19 vaccine policy, and (2) requiring face coverings and weekly testing for the nonvaccinated. That order was to go into effect on December 6, 2021, requiring the development of a policy and gathering proofs of vaccinations by that date, with the testing part taking effect on January 4, 2022. The U.S. Court of Appeals for the Fifth Circuit on November 12 enjoined the ETS from taking effect; and following that order, OSHA stood down on enforcing the ETS. Much litigation followed, with a national consolidation of related cases shifted to the Sixth Circuit Court of Appeals; and that court on December 17 dissolved the order of the Fifth Circuit, reinstating the ETS.
Author: Alexa E. Miller
NYC Takes Center Stage as the First City to Mandate COVID-19 Vaccination for Private Employers
As federal vaccine mandates are currently stayed pending the outcome of litigation in federal courts, on December 6, 2021 the outgoing New York City Mayor Bill de Blasio announced a first-in-the-nation COVID-19 vaccine mandate for private-sector workplaces. The mandate, which will take effect on December 27, will apply to roughly 184,000 businesses spread over the City’s five boroughs. With the December 27 deadline approaching, here’s what New York City employers need to know to get in compliance quickly.
What Are the General Requirements under the New York City COVID-19 Vaccine Mandate?
On December 13, the New York City health commissioner issued an order to require COVID-19 vaccination in the workplace, which was implemented by Mayor de Blasio’s Emergency Executive Order, and followed by additional guidance on the NYC COVID-19 Vaccine Workplace Requirement, a list of Frequently Asked Questions and a compliance checklist Flyer for Business Owners issued by the New York City Department of Health.
Judge Extends Temporary Restraining Order on New York’s Vaccine Mandate for Health Care Workers Based on Lack of Religious Exemption
On August 26, 2021, the New York State Department of Health’s Public Health and Health Planning Council approved temporary emergency regulations implementing a COVID-19 vaccine mandate for personnel in all entities licensed under Article 28 of the Public Health Law (including nursing homes, hospitals, and diagnostic and treatment centers), home care agencies licensed or certified under Article 36, hospice programs licensed under Article 40 and adult care facilities licensed under Article 7 of the Social Services Law. Notably, the final version of the approved emergency regulations removed the religious exemption that was present in the initial proposed version. As a result, health care workers were required to receive their first dose of a COVID-19 vaccine by September 27 — and personnel at other covered entities to receive their first dose of a COVID-19 vaccine by October 7 — unless a medical exemption is granted. On September 13, 2021, several doctors and nurses who allege that their sincere religious beliefs compel them to refuse COVID-19 vaccination, filed suit (Dr. A, et al. v. Kathy Hochul, et al.) claiming the New York State Department of Health’s failure to recognize religious exemptions to the COVID-19 vaccine mandate is unconstitutional. Plaintiffs sought a temporary restraining order and preliminary injunction enjoining the Department of Health from enforcing the mandate.
NJ Cannabis Regulatory Commission Presses Pause on Physical Evaluation Requirement for Drug Testing
As we discussed in a previous alert, the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA) brought new employment protections for job applicants and employees who lawfully use cannabis off-duty. In addition, CREAMMA preserved an employer’s right to conduct drug testing of its workforce, but added a new requirement: testing for suspected use of cannabis must be accompanied by a physical evaluation to determine the employee’s level of impairment while engaged in performing job duties, as conducted by an individual certified to opine on the employee’s state of impairment.
New York Issues NY HERO Act Standard and Model Plan — A Playbook for the Next Pandemic
This week, the New York State Department of Labor issued the new Airborne Infectious Disease Exposure Prevention Standard and model template plan under the NY HERO Act. However, with no current designation for COVID-19 as a “highly contagious communicable disease” by the New York State Commissioner of Health, the model plan is more of a playbook for the next outbreak.
Clearing the Fog: What Employers Should Look Out for Following Connecticut’s Legalization of Recreational Cannabis
Connecticut has joined the budding number of states legalizing recreational cannabis use. On June 22, 2021, Connecticut Gov. Ned Lamont signed An Act Concerning Responsible and Equitable Regulation of Adult-Use Cannabis (RERACA), which permits adults ages 21 and older to possess and use recreational cannabis. While the added strain on employers will not take effect until July 1, 2022, organizations should begin reviewing their current drug screening and testing policies and processes with employment counsel — and revisit training with hiring managers, HR professionals and supervisors.