Counseling & Compliance Training - Page 19 of 89

Summary of Cal/OSHA’s Revised COVID-19 ETS Adopted on December 16, 2021

On December 16, 2021, the California Occupational Safety & Health Standards (Cal/OSHA) Board voted to re-adopt its COVID-19 prevention emergency temporary standards (ETS) incorporating changes Cal/OSHA posted in preparation of its business meeting on December 16, 2021. If approved by the Office of Administrative Law (which is expected), the revised ETS will take effect on January 14, 2022 and will expire on April 14, 2022.

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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.

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Federal Court Suspends Federal Contractor Vaccine Mandate Nationwide

On December 7, 2021, the U.S. District Court for the Southern District of Georgia issued a preliminary injunction temporarily in Georgia v. Biden, halting the enforcement of Executive Order 14042 (EO 14042) nationwide. In doing so, the court joined the U.S. District Court for the Eastern District of Kentucky, which issued a preliminary injunction in Kentucky v. Biden last week halting the enforcement of EO 14042 in Kentucky, Ohio and Tennessee.

Seven states — Georgia, Alabama, Idaho, Kansas, South Carolina, Utah and West Virginia — the governors of several of those states, and various state agencies filed the lawsuit in the Southern District of Georgia, challenging EO 14042 and requesting that the court issue a preliminary injunction. The Associated Builders and Contractors, Inc. (ABC), a trade organization, moved to intervene in the action, and the court granted ABC’s request. In granting the preliminary injunction, the court determined that the plaintiffs met each of these required elements: (1) likelihood of success; (2) irreparable harm; (3) the balance of the harm; and (4) public interest.

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OFCCP Announces Long-Awaited Federal Contractor Compliance Portal

On December 2, 2021, the Office of Federal Contract Compliance Programs (OFCCP) officially announced its long-awaited annual affirmative action plan (AAP) certification process, which will require federal contractors and subcontractors (contractors) to register with its new Contractor Portal beginning in 2022.

The Contractor Portal will require covered contractors to certify whether they are meeting their existing requirement to develop and maintain annual AAPs. Specifically, contractors that hold a contract of $50,000 or more and employ 50 or more employees must develop and maintain AAPs pursuant to Executive Order 11246 and Section 503 of the Rehabilitation Act of 1973. If a contractor has at least 50 employees and a contract of $150,000 or more, then it must also develop an AAP pursuant to the Vietnam Era Veterans’ Readjustment Assistance Act of 1974. While contractors already certify AAP compliance, at least implicitly, as a part of the regular contracting process, this new requirement necessarily imposes an added obligation to conduct the appropriate diligence required in order to certify accurately and explicitly. As such, contractors need to be particularly mindful of False Claims Act exposure in the event of an inaccurate or false certification.

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Courts Suspend Federal Contractor Vaccine Mandate in Three States and Healthcare Worker Vaccine Mandate Nationwide

This week, federal district courts issued multiple preliminary injunctions temporarily halting the enforcement of two federal vaccine mandates: Executive Order 14042 (EO 14042), which requires certain federal contractors to ensure that their employees are vaccinated, and the interim final rule issued by the Centers for Medicare & Medicaid Services (CMS), which requires staff at health care facilities that participate in Medicare and Medicaid programs to be vaccinated (CMS rule). The current preliminary injunction halting the enforcement of EO 14042 applies only to Kentucky, Ohio and Tennessee. The combination of the preliminary injunctions preventing the enforcement of the CMS rule, however, applies nationwide.

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Delayed Gratification: Starting June 2022, Illinois Health Care Right of Conscience Act Does Not Apply to COVID-19 Measures or Requirements

Beginning in June 2022, the Illinois Health Care Right of Conscience Act will not apply to COVID-19 measures or requirements. The Illinois legislature’s thoughts behind the amendment to the law is that employers will be able to more easily enforce COVID-related rules and policies.

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