U.S. Supreme Court Gives Green Light to CMS Vaccine Mandate and Full Stop to OSHA Vaccine-or-Test Mandate, Leaving Employers to Wonder: What Now?

On January 14, 2022, the Supreme Court of the United States issued two rulings on COVID-19 vaccine mandates that immediately impact employers throughout the country. OSHA’s vaccine-or-testing mandate was effectively struck down, while the Centers for Medicare & Medicaid Services’ vaccine mandate for Medicare- and Medicaid-certified providers and suppliers was upheld.

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OSHA Announces Enforcement of Emergency Standard Requiring Vaccination or Testing – but Further Stay Is Sought

OSHA’s Emergency Temporary Standard on COVID-19 Vaccination and Testing (ETS) is now in effect, following a court-ordered stay. OSHA has announced that for employers making reasonable, good faith efforts to comply with the ETS, it would not begin enforcing all ETS requirements other than testing until January 10, 2022, and the ETS testing requirement for unvaccinated employees until February 9, 2022.

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New OSHA Emergency Temporary Standard: Vaccinations, Testing and Face Coverings

On November 6, the Court of Appeals for the Fifth Circuit issued an emergency stay with regard to the OSHA ETS on COVID-19 Vaccination and Testing. While the fate of the OSHA ETS is unclear, employers should prepare now as if the ETS will go into effect. OSHA’s new emergency temporary standard requires employers with 100 or more employees to develop and implement a policy requiring that employees either become fully vaccinated or undergo weekly testing and wear a face covering at work. Employers should promptly determine whether they are covered by the ETS. Covered employers should begin preparing a written policy and develop their approach for determining and documenting employee vaccination status.

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OSHA Updates COVID-19 Guidance for Masking and Testing of Vaccinated Workers and Further Encourages Vaccination

OSHA recently updated its Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace for employers in nonhealthcare settings. The updated OSHA guidance tracks the CDC’s July 27, 2021, recommendations, based upon the increased spread of the delta variant and new evidence that vaccinated persons can spread COVID-19. The updated OSHA guidance, together with the U.S. Food and Drug Administration’s August 23, 2021, approval of the first COVID-19 vaccine, may lead to increased worker vaccination mandates.

The updated guidance now provides for vaccinated workers to mask in public areas in all workplaces located in counties with substantial or high COVID-19 community transmission.

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OSHA Issues Emergency Temporary Standard for the Healthcare Industry

On June 10, 2021, the U.S. Department of Labor’s Occupational Safety and Health Administration submitted for publication in the Federal Register its COVID-19 Emergency Temporary Standard (ETS), setting forth new mandatory safety requirements designed to protect workers from COVID-19. The much-anticipated ETS is generally applicable only to certain healthcare workplaces and imposes differing obligations with respect to vaccinated and unvaccinated employees in various contexts.

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OSHA Issues Comprehensive COVID-19 Guidance Differentiating Between Vaccinated and Unvaccinated Employees

On June 10, 2021, OSHA updated its Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace for employers in nonhealthcare settings. The guidance provides employers with a road map of key approaches for addressing COVID-19 workplace risks in a manner that is consistent with current CDC guidance, and with different standards for fully vaccinated versus unvaccinated employees.

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Changes to CDC’s Mask Guidance Highlight Compliance Challenges for Employers

On February 10, 2021, the Centers for Disease Control and Prevention (CDC) updated its Guidance for Wearing Masks and Improve How Your Mask Protects You and Improve the Fit and Filtration of Your Mask to Reduce the Spread of COVID-19 resource pages.

Pursuant to President Biden’s January 21, 2021, Executive Order on Protecting Worker Health and Safety, on January 29, 2021, OSHA issued new comprehensive COVID-19 guidance. According to this guidance aimed at employers outside of healthcare, employers should provide all workers with face coverings at no cost, unless their work task requires a respirator.

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OSHA Issues Comprehensive COVID-19 Guidance with More Likely to Come

On January 21, 2021, President Biden signed an Executive Order on Protecting Worker Health and Safety. Pursuant to the executive order, OSHA issued guidance on January 29, 2021 that includes extensive information for structuring and implementing an effective COVID-19 Prevention Program to protect their workforces.

The guidance states that it is “advisory.” However, failure to follow the guidance may expose employers to, among other risks, OSHA citations and substantial penalties for violating the OSHA general duties clause. In this regard, the executive order calls for increased OSHA enforcement and the guidance is a starting point for such enforcement.

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California’s New Extensive COVID-19 Safety and Health Regulations Include Employer-Required Testing

California has enacted new and detailed emergency safety and health regulations affecting virtually anyone who runs a business, school or other enterprise in the Golden State. California’s Occupational Safety and Health Administration (Cal/OSHA) has issued emergency temporary standards for COVID-19 to clarify employer obligations during the pandemic and to prevent outbreaks. The new standards took effect November 30, 2020, and will remain in effect until May 30, 2021, subject to extension or adoption as a permanent regulation.

To read the full text of this Duane Morris Alert, please visit the firm website.

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

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