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Join Kelley Drye’s Labor and Employment team for the 2022 WORKing Lunch Series, which includes five webinars focused on the latest trends and developments in workplace law. Sign up for one, some, or all of the programs below. Invite a colleague, grab your lunch and let’s take a deep dive into these timely employment topics. Tuesday, September 13, 2022 at 12:30pm ET
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The Federal COVID Vaccine Rule is Here
In September, as the Delta variant was sweeping the nation, President Biden announced a comprehensive national strategy to get more Americans vaccinated and to set the path out of the pandemic. As part of this plan, the President announced that OSHA would be issuing regulations requiring any employer with 100 or more employees to ensure that workers are vaccinated.
In addition, the Centers for Medicaid and Medicare Services (CMS) and President Biden’s Safer Federal Workforce Task Force (SFWTF) have issued their own rules requiring the vaccination of healthcare workers and federal contractors, which we have covered previously here and here. Those employers covered by the CMS and SFWTF rules do not have to comply with the new OSHA mandate.
Today, OSHA promulgated this rule, via an Emergency Temporary Standard (ETS), covering employers with 100 or more employees. OSHA estimates this will cover approximately 2/3 of all workers in the United States.
Vaccinating the Unvaccinated: Employers Take Heed
Do you have 100 or more employees? Are you a federal government contractor? A healthcare provider? A large entertainment venue? If the answer to any of these questions is yes—and as you’ve already probably heard—President Biden has instructed the Occupational Health and Safety Administration (OSHA) to exercise its rulemaking authority to require all such employers to either mandate COVID-19 vaccination or to require weekly COVID-19 testing. You should review your current COVID-19 policies and President Biden’s COVID-19 Action Plan, particularly the new executive orders and mandates announced this past week, which cover about 100 million Americans, or two-thirds of the U.S. workforce.
For the moment, covered employers have to sit tight: Biden’s announcement last week was simply that OSHA will issue the new vaccination rule “in the coming weeks.” We will continue to update this blog on the many complicated issues arising from the anticipated OSHA rules, including how to comply with the rule when various Republican state governors and right-leaning interest groups have already promised litigation to challenge the rule from the moment the rule is implemented.
For now, however, here are the key takeaways for employers:
- Employers (100+ Employees): OSHA is developing a rule that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or to require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. Given the practical challenges with implementing weekly testing, many employers may simply mandate vaccination to comply with this new rule—and many already have. What happens if they don’t? This requirement is to carry substantial fines to be enforced by OSHA. In addition to the mandate, OSHA is developing a rule that will require employers with 100+ employees to provide PTO for the time it takes workers to get vaccinated and to recover.
- Federal Workers & Contractors: The President also signed an Executive Order (EO) to require all federal executive branch workers and contractors that do business with the federal government to be vaccinated. This EO eliminates the exception to the July vaccination mandate for federal employees and contractors that allowed them to opt out if they wore masks, socially distanced, and were tested for COVID-19 at least weekly.
Continue Reading Vaccinating the Unvaccinated: Employers Take Heed
The New Employee Status: Vaccinated or Unvaccinated
What to expect from the projected increase in vaccine requirements, restrictions, and lawsuits in the months ahead.
With the highly transmissible Delta variant surging, and vaccination rates stagnating, employers are facing new pressures to reinstate mask mandates for everyone, regardless of vaccination status, and encourage COVID-19 vaccines through workplace mandates.
On August 23, 2021, the Food and Drug Administration (FDA) fully approved the Pfizer-BioNTech COVID-19 vaccine for use in those age 16 and older. This upgrade to full approval from “emergency use” status is predicted to lead to a rise in vaccine requirements from employers, schools, and local governments. Health officials are also hopeful that the approval will lead to higher vaccination rates. Note that the Pfizer vaccine is only one of three COVID-19 vaccines to receive full approval. The Moderna and Johnson & Johnson vaccines remain in emergency use status only.
Even under the FDA’s prior emergency use approval, major companies – including Google, Facebook, BlackRock, and Morgan Stanley – initiated policies insisting that workers get vaccinated before returning to the office. Meanwhile, California and New York City became the first state and major city, respectively, to require public workers to be vaccinated. Illinois very recently joined the returning wave of COVID-19 related restrictions by enacting another statewide mask mandate and requiring all teachers and healthcare workers be vaccinated or subject to weekly testing. The Biden administration also requires all federal workers to attest to being vaccinated or face strict testing protocols.
Continue Reading The New Employee Status: Vaccinated or Unvaccinated
OSHA’s Emergency Temporary Standard for Healthcare
On January 21, 2021, President Biden enacted the Executive Order “Protecting Worker Health and Safety” which tasked OSHA with developing safety measures to help protect workers as the nation continued its post-pandemic reopening. On June 10, 2021, in response to that direction, OSHA issued an emergency temporary standard (“ETS”) focused on healthcare settings where workers are most likely to have contact with individuals infected by the virus.
Below are some of the salient points of the ETS:
Continue Reading OSHA’s Emergency Temporary Standard for Healthcare
Complimentary Webinar: Restrictive Covenants 101
Tuesday, June 22nd at 12:30pm ET
Restrictive Covenants 101: NDAs, Non-Competes & Other Tools To Protect Your Company
A company’s confidential information and customer relationships are its lifeblood—and are the assets that can walk out the door too easily with a departing employee. Too few companies take a considered approach to protecting those assets. NDAs
Complimentary Webinar: Immediate Employment Law Impacts Under Biden Admin
Forget speculation about what is to come: the Biden administration has already acted to unravel the Trump legacy in employment and labor regulation—and to expand worker protections.
Join us on April 15, 2020 at 12:30 p.m. ET for a complimentary webinar, where we will take a deep dive into the regulatory changes immediately impacting your
Change is In the Air – L&E Under The Biden-Harris Administration
On January 20, 2021, Vice President Joseph R. Biden Jr. will be sworn in as the 46th president of the United States. Whichever side of the political spectrum you fall on, there can be no question that this is going to signal changes – and not all of them positive – for employers. For all
Compel OSHA to Issue an Emergency Temporary Standard for COVID-19? The DC Circuit Says No to the AFL-CIO (Twice)
On July 28, the United States Court of Appeals for the District of Columbia Circuit (“DC Circuit”) declined to rehear the unanimous ruling of a three-judge DC Circuit panel that denied the AFL-CIO’s request that the court compel the U.S. Occupational Safety and Health Administration (“OSHA”) to an emergency temporary standard (“ETS”) to protect workers from coronavirus. This rejection of the AFL-CIO’s petition for rehearing en banc, signals that the AFL-CIO’s five-month effort to compel OSHA to issue an ETS has likely come to an end.
Unless the Supreme Court agrees to review the ruling, or OSHA reconsiders its position (both quite unlikely), employers will not be subject to a new workplace health standard for COVID-19. Instead, they will continue to be subject to the Occupational Safety and Health Act’s (“OSH Act’s”) “general duty” to protect their employees from recognized workplace hazards, as well as the myriad of OSHA regulations and guidance that direct employers on specific elements of workplace safety (i.e., PPE, training, recordkeeping). But before we roll the credits on this fast and furious litigation, perhaps a recap is in order.
Upcoming Webinar: NOT NORMAL – The Challenges of a Changed Workplace
JOIN US: TUESDAY, JULY 21, 2020 | 12:30PM EST
Four months ago, the Dow was close to 30,000, employment rates were at historic highs, the coronavirus was still “novel,” and millions had not yet taken to the streets in global protests against police brutality and racial inequality. The workplace we now return to exists in