BREAKING – Sixth Circuit Rescinds Stay of OSHA’s Vaccinate-or-Test Emergency Temporary Standard

By Conn Maciel Carey’s COVID-19 Task Force

We apologize for interrupting what we hoped be a quiet, pre-holiday weekend for everyone, but we have very important and time sensitive news to share about the status of OSHA’s Vaccination, Testing, and Face Coverings Emergency Temporary Standard (ETS).  It was a very busy Friday night for everyone in the OSHA world.  In a remarkable turn of events, at 6:50 PM yesterday evening (December 17th), the US Court of Appeals for the Sixth Circuit dissolved the nationwide stay of OSHA’s Vaccination ETS that had been issued by the Fifth Circuit in November.

The Department of Labor and OSHA then immediately issued a statement that OSHA was moving forward with implementation and enforcement of the ETS, but also provided some enforcement relief for companies able to demonstrate good faith efforts to comply.  Then, within an hour of the Sixth Circuit decision being released, numerous parties filed an emergency application and motion with the US Supreme Court requesting the Supreme Court reissue a stay of the ETS.  And then, finally, shortly after midnight (approximately 1 AM last night), South Carolina along with 26 other State Attorneys General and a host of private entities also filed an emergency application for a stay.  What a night.

We briefly summarize the Sixth Circuit’s decision below and explain the lay of the land as it stands at this moment, what might occur next and, most importantly, what this means for employers across the nation.  Bottom line is that events are moving fast, but as we said a few weeks ago, do not put a fork in the ETS, and continue to prepare to come into compliance with it.  It is alive and well, at least until we hear from the Supreme Court.

Sixth Circuit Decision 

In a 2-1 opinion written by Obama-appointee Judge Jane Stranch and, notably, joined by Bush appointee Judge Julia Gibbons, the Sixth Circuit rescinded the nationwide stay of OSHA’s ETS that had been issued by the Fifth Circuit first an administrative stay on November 6th and then as a TRO on November 12th. The three-judge panel that heard the case consisted of one Obama appointee, one Bush (W.) appointee, and one Trump appointee.  Judge Gibbons (the Bush appointee) joined Judge Stranch, but she also wrote a separate concurring opinion.  Trump-appointee Judge Joan Larsen, who had purportedly been on a Trump’s short-list of potential nominees to the Supreme Court, dissented.

In a nutshell, Continue reading

[BREAKING] 5th Cir. Temporarily Stays OSHA’s COVID-19 Vaccination, Testing, and Face Coverings Emergency Rule

By Conn Maciel Carey’s COVID-19 Task Force

On Saturday, November 6th, a three-judge panel of the US Court of Appeals for the Fifth Circuit issued a Temporary Restraining Order (TRO) staying the effect of OSHA’s vaccination, testing, and face coverings emergency temporary standard (ETS) that it had promulgated just the day before.  The entirety of the court’s explanation for the stay Order was this:

“Because the petitions give cause to believe there are grave statutory
and constitutional issues with the Mandate, the Mandate is hereby STAYED
pending further action by this court.”

The suit challenging OSHA’s new vaccination, testing, and face coverings ETS was initiated on behalf of a group of private businesses and religious organizations, as well as several states, including Texas, Louisiana, South Carolina, Utah and Mississippi. The petitioners argued that OSHA overstepped its legal authority in issuing an emergency standard to address COVID-19 in US workplaces at this point in the pandemic. The petitioners assert that an emergency stay is necessary because these employers will face workforce shortages if unvaccinated employees quit their jobs in lieu of receiving a COVID-19 vaccination, and the ETSforces them to expend resources to develop and implement written compliance and reporting procedures beyond what the law authorizes under the circumstances.

Specifically, their objections to the OSHA ETS include: Continue reading

OSHA Issues Its COVID-19 Vaccination, Testing, and Face Coverings Emergency Temporary Standard

By Conn Maciel Carey LLP’s COVID-19 Task Force

At long last, OSHA has revealed its COVID-19 Vaccination and Testing emergency regulation.  The Federal Register site has updated to show the pre-publication package, which is set to run officially in the Federal Register tomorrow, November 5th.  The 490-page package includes the Preamble and economic analysis of the regulation, as well as the regulatory text.  The regulatory text begins on PDF page 473.  Also here is a Fact Sheet about the ETS issued simultaneously by the White House.

We are extremely pleased to report that the rule aligns very well with positions for which CMC’s Employers COVID-19 Prevention Coalition advocated to OSHA and OMB on the most significant topics, like the responsibility for the cost of COVID-19 testing and a delayed implementation date, as well as very narrow record-preservation requirements, grandfathering of prior vaccine-verification efforts, and other elements. OSHA and the White House clearly listened to our views and the compelling rational we put forward for these positions, making the rule a much better, more effective and less burdensome one for employers.

Conn Maciel Carey’s COVID-19 Task Force will be conducting a webinar about the ETS on Wednesday, November 10th at 1:00 PM ET.  Here is a link to register for that program.

In the meantime, below is a detailed summary of the rule:

What is the stated purpose of the regulation?

The ETS is “intended to establish minimum vaccination, vaccination verification, face covering, and testing requirements to address the grave danger of COVID-19 in the workplace, and to preempt inconsistent state and local requirements relating to these issues, including requirements that ban or limit employers’ authority to require vaccination, face covering, or testing, regardless of the number of employees.”

Who is covered?

As the president signaled in his announcement and action plan from September 9, the ETS applies only to employers with 100 or more employees, and the rule does make it explicit that the way you count those employees is on a company–wide basis, not establishment-by-establishment.

Continue reading

Contesting MSHA Citations and Orders: Tips and Strategies to Protect Your Company’s History (Webinar Recording)

On October 27, 2021, Nick Scala hosted a webinar regarding Contesting MSHA Citations and Orders: Tips and Strategies to Protect Your Company’s History.

MSHA citations and orders can vary significantly in severity, penalty, and how they might impact your company, whether mine operators or independent contractors, moving forward. Contesting MSHA citations is a right that all operators have post issuance, whether that is done informally through MSHA’s 10-day conference program, or formally through the Federal Mine Safety and Health Commission. This presentation discussed the different avenues for contesting MSHA citations/orders, what aspects of the citations to look at when deciding whether to contest or not, and strategies for best protecting your company’s MSHA enforcement history.

Participants in this webinar learned the following: Continue reading

Contesting MSHA Citations and Orders: Tips and Strategies to Protect Your Company’s History

On Wednesday, October 27, 2021 at 1 p.m. ET, join Nick Scala for a webinar regarding Contesting MSHA Citations and Orders: Tips and Strategies to Protect Your Company’s History.

MSHA citations and orders can vary significantly in severity, penalty, and how they might impact your company, whether mine operators or independent contractors, moving forward. Contesting MSHA citations is a right that all operators have post issuance, whether that is done informally through MSHA’s 10-day conference program, or formally through the Federal Mine Safety and Health Commission. This presentation will discuss the different avenues for contesting MSHA citations/orders, what aspects of the citations to look at when deciding whether to contest or not, and strategies for best protecting your company’s MSHA enforcement history.

Participants in this webinar will learn the following: Continue reading

Fed OSHA’s New COVID-19 Vaccine-Mandate Emergency Rulemaking [Webinar Recording]

On September 17, 2021, attorneys from Conn Maciel Carey LLP’s COVID-19 Task Force presented a webinar reviewing OSHA’s new COVID-19 emergency rulemaking focused on vaccine and testing mandates for many US employers.

On September 9th, President Biden revealed a new COVID-19 Action Plan with one of several key goals to “Vaccinate the Unvaccinated.” The most notable aspect of that plan is a directive to federal OSHA to develop a 2nd COVID-19 Emergency Temporary Standard requiring all but small employers in all industries to implement “soft” vaccine mandates; i.e., require employees to either be fully vaccinated or get weekly testing. The President also directed OSHA to include in this new ETS a requirement that employers provide paid time for employees to get vaccinated and recover from ill effects of the vaccine. Separately, the President issued Executive Orders setting “hard” vaccine mandates for federal contractors and healthcare workers.

The President’s announcement was lean on details, and prompted as many questions as it answered. The attorneys from CMC’s OSHA and Employment Law practices discussed our take on the burning questions raised by this latest development on the COVID-19 front: Continue reading

Q&As About Fed OSHA’s New COVID-19 Vaccine-Mandate Emergency Rulemaking

By Conn Maciel Carey’s COVID-19 Taskforce

Last Thursday, September 9th, President Biden announced that he is directing OSHA to issue a new Emergency Temporary Standard (ETS) that would require many employers to provide paid time for employees to get and recover from getting vaccinated and to implement “soft” vaccine mandates; i.e., require employees either to be fully vaccinated or get weekly COVID-19 testing, as well as issuing new Executive Orders requiring federal contractors to implement “hard” vaccine mandates.

While we anticipated OSHA would reconsider the need for a broader COVID-19 ETS applicable beyond just the healthcare sector in light of the impact of the Delta variant, President Biden’s decision to use a new ETS focused on vaccinations and testing as a central element of his newly unveiled Path Out of the Pandemic – COVID-19 Action Plan raises a host of challenges for employers across the country.  To help our clients and friends in industry prepare for and navigate this emergency rulemaking, we have prepared an extensive list of Q&As about OSHA’s Emergency Rulemaking for a COVID-19 Vaccine-Mandate ETS.  Also, here are links to an article we prepared summarizing OSHA’s new emergency rulemaking, a recording of the webinar about the ETS we conducted last week, and the slides we used.

We understand from our contacts at OSHA that the agency will move much more quickly to prepare and send this ETS to the White House, so it is imperative that the employer community come together now to identify shared concerns and considerations and begin advocating to OSHA and OMB so that this new ETS is one with which industry can reasonably manage.  To that end, Conn Maciel Carey LLP is organizing a coalition of employers and trade groups to advocate for the most reasonable fed OSHA COVID-19 emergency rule focused on vaccination and testing possible.

For several reasons, we believe this emergency rulemaking may be the OSHA rulemaking that has the most opportunity for industry influence that we can recall.  First, Continue reading

MSHA and OSHA Jurisdiction: When, How, and Why to Challenge Your Regulator [Webinar Recording]

On September 14, 2021, Nicholas W. Scala presented a webinar regarding MSHA and OSHA Jurisdiction: When, How, and Why to Challenge Your Regulator.

The line of demarcation between MSHA and OSHA jurisdiction is clear-cut and it is easy to determine which regulator has authority over your operations, right? While that is sometimes the case, where the MSHA/OSHA Interagency Agreement specifically outlines which agency has authority of which operation, there are most definitely gray areas. Whether looking at where the mining process ends and manufacturing beings, or what is the exact definition of mineral milling and how is it applied, there are frequently questions and concerns regarding MSHA/OSHA jurisdiction. However, frequently employers just accept the status quo or agency determination without question. This presentation will help employers ask the right questions regarding MSHA/OSHA jurisdiction at their facilities and determine whether or not challenging the agency in control is merited and worthwhile.

Participants in this webinar learned the following: Continue reading

[Bonus Webinar] Fed OSHA’s 2nd COVID-19 Emergency Temporary Standard: Vaccine and Testing Mandates

Join attorneys from Conn Maciel Carey LLP’s COVID-19 Task Force on Fri., Sept. 17th at 1 PM ET for a webinar reviewing OSHA’s 2nd COVID-19 emergency rulemaking focused on vaccine and testing mandates for many US employers.

On Sept. 9th, Pres. Biden revealed a new COVID-19 Action Plan with one of several key goals to “Vaccinate the Unvaccinated.” The most notable aspect of that plan is a directive to federal OSHA to develop a 2nd COVID-19 Emergency Temporary Standard requiring all but small employers in all industries to implement “soft” vaccine mandates; i.e., require employees to either be fully vaccinated or get weekly testing. The President also directed OSHA to include in this new ETS a requirement that employers provide paid time for employees to get vaccinated and recover from ill effects of the vaccine. Separately, the President issued Executive Orders setting “hard” vaccine mandates for federal contractors and healthcare workers.

The President’s announcement was lean on details, and prompted as many questions as it answered. Join the attorneys from CMC’s OSHA and Employment Law practices to talk through our take on the burning questions raised by this latest development on the COVID-19 front: Continue reading

[Webinar] MSHA and OSHA Jurisdiction: When, How, and Why to Challenge Your Regulator

On Tuesday, September 14, 2021 at 1 p.m. ET, join Nick Scala for a webinar regarding MSHA and OSHA Jurisdiction: When, How, and Why to Challenge Your Regulator.

CaptureThe line of demarcation between MSHA and OSHA jurisdiction is clear-cut and it is easy to determine which regulator has authority over your operations, right? While that is sometimes the case, where the MSHA/OSHA Interagency Agreement specifically outlines which agency has authority of which operation, there are most definitely gray areas. Whether looking at where the mining process ends and manufacturing beings, or what is the exact definition of mineral milling and how is it applied, there are frequently questions and concerns regarding MSHA/OSHA jurisdiction. However, frequently employers just accept the status quo or agency determination without question. This presentation will help employers ask the right questions regarding MSHA/OSHA jurisdiction at their facilities and determine whether or not challenging the agency in control is merited and worthwhile.

Participants in this webinar will learn the following:

Continue reading