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On November 12, the U.S. Court of Appeals for the Fifth Circuit issued a nationwide stay on the emergency temporary standard (ETS), which mandates that all employers with 100 or more employees require employees to be fully vaccinated or be subject to a weekly Covid-19 test. As previously covered by InfoBytes, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) published a rule in the Federal Register requiring employers to develop, implement, and enforce a mandatory Covid-19 vaccination policy, unless they adopt a policy requiring employees to choose between vaccination or regular testing for Covid-19 and wearing a face covering at work. The 5th Circuit stay, which was in response to a legal challenge filed by several states along with private entities and individuals, affirmed the court’s initial stay. According to the appellate opinion, OSHA’s enforcement of this ETS is illegitimate, calling it “unlawful” and “likely unconstitutional.” Furthermore, the 5th Circuit ordered OSHA to “take no steps to implement or enforce the Mandate until further court order.”
On November 5, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) published a rule in the Federal Register requiring employers to develop, implement and enforce a mandatory Covid-19 vaccination policy, unless they adopt a policy requiring employees to choose between vaccination or regular testing for Covid-19 and wearing a face covering at work. The emergency temporary standard (ETS) is for “employers with 100 or more employees—firm or company-wide,” which covers two-thirds of the nation's private-sector workforce. According to OSHA’s press release, the ETS requires employers to: (i) give paid time to workers to get vaccinated; (ii) permit paid leave for employees recovering from side effects; (iii) determine the vaccination status of each employee; (iv) acquire proof of vaccination from each vaccinated employee; (v) maintain records on each employee’s vaccination status; (vi) ensure each employee who is not fully vaccinated is tested for Covid-19 at least once a week, in certain circumstance; (vii) require employees to provide prompt notice after receiving a positive Covid-19 test or diagnosis; and (viii) ensure that each employee who has not been fully vaccinated working indoors or when occupying a vehicle with another person, for work purposes, wears a face covering. The ETS is effective immediately and “employers must comply with most requirements within 30 days of publication and with testing requirements within 60 days of publication.”
The same day, the Biden administration released a fact sheet clarifying the details of OSHA’s mandate. Specifically, the fact sheet noted that though the testing requirement will not take effect until January 4, 2022, employers must be in compliance with all other requirements, such as “providing paid-time for employees to get vaccinated and masking for unvaccinated workers,” by December 5.
- Sherry-Maria Safchuk to discuss “Hot topics outside of CA” at the California Mortgage Bankers Association Conference
- Jon David D. Langlois to discuss “LIBOR Transition: How will the pieces come together in time?” at the American Bar Association In the Know-Live webinar
- Buckley Webcast: Dissecting the annual federal agency fair lending summit
- Jonice Gray Tucker to discuss “Regulators always ring twice: Responding to a government request” at ALM Legalweek