Supreme Court Blocks OSHA Vaccination-or-Test Mandate and Upholds CMS Rule Mandating Vaccines – Now What?

On January 13, 2022, the U.S. Supreme Court issued two significant opinions:

  • In Nat’l Fed. of Independent Business v. Occupational Safety and Health Administration, the Supreme Court stayed enforcement of the Occupational Safety and Health Administration’s (OSHA) emergency temporary standard (ETS) related to COVID-19 prevention measures, holding that the groups and businesses challenging the standard were likely to succeed in showing that the ETS requirements exceeded OSHA’s statutory authority.
  • In Biden v. Missouri, the Supreme Court lifted the stay of the Centers for Medicare and Medicaid Services Interim Final Rule (the CMS Rule) for health facilities that receive Medicare or Medicaid reimbursement, holding that the Secretary had statutory authority to issue the mandate.

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OSHA Suspends Emergency Temporary Standard (ETS) Enforcement Following Fifth Circuit Ruling – Now What?

On Friday, November 12, 2021, in BST Holdings, L.L.C, et al. v. Occupational Safety and Health Administration (OSHA), Case # 21-60845, the United States Court of Appeals for the Fifth Circuit issued an order affirming its November 6, 2021 order, staying the implementation and enforcement of OSHA’s November 5, 2021 Emergency Temporary Standard (ETS). The ETS requires employers with 100 or more employees to ensure that their employees who report to a workplace are vaccinated against COVID-19 or submit to weekly COVID-19 testing. The Fifth Circuit, which many consider to be the most politically conservative of all the circuit courts, issued its order following an expedited briefing schedule, prompted by an emergency motion to stay the ETS filed by various individuals, employers, religious groups and states. Pending further judicial review, the order barred OSHA from taking steps to implement or enforce the ETS. In response, OSHA has suspended all activities related to the ETS for the time being, stating: “While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.” Businesses now face an uncertain future with OSHA conceding that it will abide by the court’s order while pursuing its reversal. Because similar challenges to the ETS have been brought in all but one of the 12 federal circuit courts of appeals, the U.S. Judicial Panel on Multidistrict Litigation will conduct a lottery as required by statute, pursuant to 28 U.S.C.A. §2112 (a)(3),  likely this week, to select which federal circuit will hear appeals in the numerous challenges, including with respect to the Fifth Circuit’s order. Any outcome from the circuit selected in the lottery process may and likely will be appealed to the U.S. Supreme Court.

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New California Laws for 2022: What Employers Should Know

California Gov. Gavin Newsom signed several laws in 2021 that are impacting or will impact how employers interact with and manage their employees. From confidentiality and nondisparagement provisions in settlement agreements to production quotas in warehouses, we examine the laws that have gone into effect and which laws employers need to begin preparing for over the next one to two years.

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EEOC Issues New COVID-19 Guidance Addressing Vaccinations in the Workplace

Today, after much anticipation and just in time for the Memorial Day holiday, the Equal Employment Opportunity Commission released updated guidance on COVID-19 vaccination issues raised under federal equal employment laws. We outline five things you need to know about the new guidance.

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COVID-19 Vaccination Planning for Employers: Questions to Consider for Policy and Practice

As COVID-19 vaccines become more widely accessible, and certain localities relax COVID-19 restrictions, employers hoping to ramp up on-site operations or reduce absenteeism face a new challenge: navigating employee vaccination. Employers are evaluating whether to mandate, strongly suggest or simply remain neutral regarding COVID-19 vaccinations and on-site work.

The considerations surrounding workplace vaccination programs are complex. Business justifications and accommodation issues, potential public relations and employee relations pitfalls, the impact of vaccination on workforce safety procedures, litigation risks on multiple fronts — these are just the beginning. To help piece together this business and regulatory puzzle, we have compiled a list of issues organizations should consider as they set policy and communication plans regarding on-site work and COVID-19 vaccines. We have also identified issues to consider with regard to the practical application of any such policy and the development of related communications to employees or others.

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Preview of Things to Come? Lawsuit Challenges Employer COVID-19 Vaccine Mandate

Access to COVID-19 vaccines continues to expand in the United States and employers are navigating many questions surrounding employee vaccination and return to work. Current polling shows a substantial number of American workers are hesitant about or may refuse to be vaccinated against COVID-19. Now, an employee in New Mexico has filed what appears to be one of the first lawsuits opposing an employer’s vaccination mandate.

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