Supreme Court Blocks OSHA Vaccine-Or-Test Rule

Frederick G. Sandstrom 

In a much-anticipated decision, the United States Supreme Court has blocked the Occupational Safety and Health Administration’s (“OSHA”) “vaccinate or test” Emergency Temporary Standard (“ETS”). The Court’s January 13, 2022, decision means that the ETS is stayed pending a hearing on the merits of the challenges to its validity. However, in practical terms, it is likely a death-knell for the ETS, which was set to expire in May 2022.

The Court’s per curiam opinion, written on behalf of the six conservative-leaning justices, held that the ETS exceeded OSHA’s statutory power because it sought to broadly regulate “public health” and was not directed specifically at workplace safety. The Court explained: “It is telling that OSHA, in its half century of existence, has never before adopted a broad public health regulation of this kind—addressing a threat that is untethered, in any causal sense, from the workplace.”

In a concurring opinion joined by Justices Thomas and Alito, Justice Gorsuch elaborated that the “major questions doctrine” requires Congress to delegate clearly and specifically to an agency the authority to mandate Covid-19 vaccination or testing. Absent a clear and specific delegation, the Constitution reserves that power to “the states and Congress, not OSHA.”

The Court’s three liberal-leaning justices dissented. The dissenting opinion, co-authored by Justices Breyer, Sotomayor, and Kagan, asserted that the ETS fell squarely within OSHA’s emergency power because it was necessary to “protect employees” from a “grave danger” to workplace safety. The dissent argued further that, even if the merits of the ETS were reasonably in dispute, a stay would still be inappropriate because the “public interest” and “balance of harms” supported allowing the ETS to remain in effect. In conclusion, the dissent accused the majority’s decision of “undercut[ting] the capacity of the responsible federal officials, acting well within the scope of their authority, to protect American workers from grave danger.”

A final note: While fatal to the ETS, the Court’s decision likely is not the final word on broad workplace safety responses to the Covid-19 pandemic. Now that OSHA has been blocked from taking action, it is reasonable to expect that some state workplace safety agencies will become more active in adopting their own measures aimed at Covid-19 safety in the workplace. Stay tuned for more on the development of any new state-level rules and also on what happens with the ETS as it heads back to the United States Court of Appeals for the Sixth Circuit.

Employers Await Supreme Court Decision on OSHA ETS Appeal

Frederick G. Sandstrom and Nicole N. Wentworth

On Friday, January 7, 2022, the United States Supreme Court held oral argument on the Occupational Safety and Health Administration’s (“OSHA”) much-litigated “vaccinate or test” Emergency Temporary Standard (“ETS”). Absent action by the Court, compliance with the ETS is set to  commence today, Monday, January 10, though OSHA has said it will not issue citations to employers who have made a good faith attempt to comply with the testing requirements. The Court is expected to issue a decision promptly.

The argument was originally scheduled for one hour but ran nearly two hours due to extensive questioning by the justices. The Court’s six conservative-leaning justices all appeared skeptical of the enforceability of the ETS, but their questions suggested a divide in the legal basis for their views. Justices Thomas, Alito, and Gorsuch’s questioning suggested that they viewed the mandate as clearly outside OSHA’s authority to regulate workplace safety. Justices Roberts, Kavanaugh, and Barrett suggested a narrower view in their questioning, indicating that they may see OSHA as having the authority to impose a narrower emergency mandate targeted at specific fields or industries that present unique safety risks. Justices Roberts, Kavanaugh, and Barrett also suggested that only Congress has the power to impose a broad federal vaccine mandate (like the current ETS) and that in the absence of congressional action, the power to impose an economy-wide mandate was reserved to the states. The Court’s liberal-leaning justices—Justices Breyer, Sotomayor, and Kagan—all expressed strong support for the ETS in their questioning.

During questioning, Justice Alito asked the Solicitor General (representing the federal government) if there was any objection to a brief administrative stay of the January 10 compliance deadline pending the Court’s decision on the appeal. The Solicitor General largely conceded that a brief stay would be appropriate.

We will post a prompt update when the Court issues a decision on the ETS appeal. In the meantime, covered employers should continue to proceed with good faith preparations to implement the requirements of the ETS.

The Return of the OSHA ETS: What Now and What’s Next?

Frederick G. Sandstrom

On December 17, the U.S. Court of Appeals for the Sixth Circuit revived the federal Occupational Safety and Health Administration’s much-litigated “vaccinate or test” Emergency Temporary Standard (“ETS”). The Sixth Circuit’s divided decision lifted the nationwide stay on enforcement of the ETS that had previously been ordered by the U.S. Court of Appeals for the Fifth Circuit. The litigation will now move to the U.S. Supreme Court, which has already received eight separate petitions seeking to stay the Sixth Circuit’s decision. The Supreme Court has ordered the federal government to respond to the petitions by December 30.

OSHA has moved quickly to reinstate the ETS. On December 18, OSHA released new guidance on the timing for compliance with, and enforcement of, the ETS’s requirements. Broadly speaking, the guidance states that: (1) OSHA will not issue citations for noncompliance with the ETS prior to January 10, 2022; and (2) OSHA also will not issue citations for noncompliance with the ETS’s testing requirements prior to February 9, 2022, provided that an employer is “exercising reasonable, good faith efforts to come into compliance.”

OSHA has promised more detailed guidance. And there will likely be more twists and turns as the appeals from the Sixth Circuit’s decision proceed to the Supreme Court. For now, however, covered employers that paused their efforts to comply with the ETS in light of the stay, should take steps to resume their efforts to continue down the path to compliance. The December 18 guidance suggests strongly that OSHA expects covered employers to do the following by the initial January 10 compliance deadline: (1) adopt a written vaccination policy; (2) confirm each employee’s vaccination status, including proof of vaccination for vaccinated employees; (3) provide paid time off for unvaccinated or partially vaccinated employees to be vaccinated; and (4) require face coverings and other protective measures for unvaccinated employees working on-site. The ETS also contains informational requirements, including an obligation for covered employers to provide employees with a copy of the CDC’s publication on “Key Things to Know About COVID-19 Vaccines” (a copy of which can be obtained here).

We will continue to update you on further developments regarding the ETS as the appeals process continues before the Supreme Court.

“Key to NYC”: New York City Announces Vaccine Mandate Guidance

Anthony A. Mingione

New York City has issued the much-awaited guidance on its private-sector vaccine mandate. The mandate, which is scheduled to take effect on December 27, 2021, will apply to roughly 184,000 businesses in the City. There are several key takeaways from the guidance and accompanying FAQs.

Which Businesses Are Covered?

Any business that maintains or operates a workplace in New York City is covered. A “workplace” is any place where work is performed in the presence of another worker, or a member of the public.

What Must Employers Do to Comply?

Subject to the accommodation process described below, by December 27, 2021, employers must collect acceptable proof of at least one dose of COVID-19 vaccination from all individuals who perform services at New York City workplaces operated by the employer. This includes on-site independent contractors and nonresidents who work at New York City workplaces. (Workers who show proof of a first shot of a two-shot vaccine need to get their second dose within 45 days.)

The forms of acceptable proof have not changed. They include: a CDC COVID-19 vaccination record card or other official immunization record, New York City COVID Safe App showing a vaccination record, a New York State Excelsior Pass/Excelsior Pass Plus, or a CLEAR Health Pass. Accordingly, employers do not need to collect additional information from employees who have already provided proof of vaccination.

Continue reading ““Key to NYC”: New York City Announces Vaccine Mandate Guidance”

Moving the Needle: New York City to Mandate COVID Vaccines at All Private Employers

Anthony A. Mingione

Outgoing New York City Mayor Bill de Blasio announced the country’s first vaccine mandate to apply to all private-sector workers. The mandate, which is scheduled to take effect on December 27, 2021, would apply to roughly 184,000 businesses in the City.

Acceptable proof of vaccination will include a CDC-issued vaccination card, the New York State Excelsior Pass, the Clear Health Pass, and the NYC COVID Safe App.

The City plans to issue enforcement guidance on December 15, 2021. The guidance is expected to include provisions for reasonable accommodations for religious and medical exemption requests. The announcement also includes a pledge of additional resources to support small businesses with implementation, though what will qualify as a “small business” or what those resources will be remains to be seen.

Continue reading “Moving the Needle: New York City to Mandate COVID Vaccines at All Private Employers”

OSHA Releases Workplace COVID-19 Vaccine and Testing Rule

Frederick G. Sandstrom

The Occupational Safety and Health Administration (“OSHA”) released this morning the much-awaited text of its emergency temporary rule regarding mandatory workplace vaccination and testing for the COVID-19 virus. The rule is expected to be published in the Federal Register tomorrow, November 5, 2021, and will be effective upon publication. The emergency rule will be in effect for an initial period of six months but may be extended by formal rulemaking.

The following FAQ addresses key questions and issues relating to the OSHA rule and its requirements:

  1. Who is covered by the OSHA rule?

The OSHA rule applies to employers with 100 or more employees company-wide. The threshold is fluid and an employer will be covered by the rule if it has 100 or more employees at any time while the rule is in effect. An employer cannot, for example, look only to its headcount on the initial effective date of the rule. Once an employer is covered, it will remain covered for as long as the rule is in effect, even if its headcount falls below 100 employees.

Continue reading “OSHA Releases Workplace COVID-19 Vaccine and Testing Rule”

NY HERO Act Update—It’s Really Time to Comply

William J. Anthony

On September 6, 2021, New York Governor Hochul designated COVID-19 a “highly contagious communicable disease.” With this designation, employers now have obligations under the New York Health and Essential Rights Act (“HERO Act”) that go well beyond simply adopting one of the model prevention plans. Since we should all expect the designation to continue, it is only a matter of time before the Department of Labor (“DOL”), collective bargaining representatives, and/or employees pursue claims against employers who fail to comply with the enhanced requirements in the Act. The good news, while compliance is tedious and will take some time, it is easily accomplished. We recently presented a webinar on the HERO Act which we wanted to share with you. The link to the webinar is below and is free if you use the code BRomeLLP. The one-hour webinar is a step-by-step guide to complying with the Act’s provisions. 

Continue reading “NY HERO Act Update—It’s Really Time to Comply”

President Biden Announces Sweeping New Requirements Aimed at Combatting the Surging COVID-19 Delta Variant

Oliver R. Katz, Brooke T. Iley, and Jason E. Reisman


With COVID-19 surging once again across the United States, yesterday, September 9, 2021, President Joe Biden announced a six-part plan for tackling the rising number of COVID-19 cases throughout the country. President Biden’s announcement includes a mandate that large employers require vaccines or weekly COVID-19 testing for their employees, as well as a mandate that all federal workers and contractors be vaccinated. Estimated to affect 100 million American workers, here are some important details employers should know:

      • All employers with 100 or more employees must ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative COVID-19 test at least on a weekly basis prior to coming to work.
      • Covered employers are required to provide paid time off to employees to get vaccinated or recover from any side effects of getting vaccinated.
      • All federal executive branch workers and employees of contractors that do business with the federal government are required to be vaccinated, with no ability to opt out and instead be subject to regular testing (Blank Rome’s government contractor FAQs about the executive order can be found on our Government Contracts Navigator blog).
      • Large entertainment venues like sports arenas, large concert halls, and other venues where large groups of people gather are asked to mandate that their patrons are vaccinated or show a negative COVID-19 test for entry.
      • Healthcare facilities receiving Medicare and Medicaid reimbursement, including but not limited to hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies, must vaccinate their employees.
      • The vaccination requirement for nursing home facilities will now apply to nursing home staff as well as staff in hospitals and other Centers for Medicare and Medicaid Services regulated settings, including clinical staff, individuals providing services under arrangements, volunteers, and staff who are involved in direct patient, resident, or client care.
Continue reading “President Biden Announces Sweeping New Requirements Aimed at Combatting the Surging COVID-19 Delta Variant”

As If Employers Didn’t Have Enough to Worry About, Don’t Skip the ARPA Cobra Subsidy Expiration Notice

Daniel L. Morgan 

As we explained in our April 16, 2021, post, the American Rescue Plan Act of 2021 (“ARPA”) requires employers to subsidize the cost of Consolidated Omnibus Budget Reconciliation Act (“COBRA”) continuation coverage and state mini-COBRA coverage, if COBRA doesn’t apply, for qualified beneficiaries who become eligible for and elect COBRA (or a state’s mini-COBRA) benefits as a result of an employee’s loss of health plan coverage due to an involuntary termination of employment (other than for gross misconduct) or a reduction of hours. ARPA refers to people who satisfy these requirements as “Assistance Eligible Individuals.”

As explained in our earlier post, the COBRA and mini-COBRA premium subsidy is available only from April 1, 2021, through September 30, 2021.

One of the requirements of ARPA is that Assistance Eligible Employees must be notified 15 to 45 days before their premium subsidy ends that their subsidy is expiring. In the case of Assistance Eligible Individuals who are currently receiving the premium subsidy, this means that the expiration notice must be provided no later than September 15, 2021. Not meeting this deadline may result in the imposition of penalties. The Department of Labor’s model notice can be found at dol.gov/sites/dolgov/files/ebsa/laws-and-regulations/laws/cobra/premium-subsidy/notice-of-premium-assistance-expiration-premium.pdf.

Employers should contact their health plan insurers or COBRA administrators to confirm that they are sending the Notices out.

Please reach out if you have any questions or need assistance.

New York’s HERO Act: What Employers Need to Know; What Employers Need to Do Right Now

William J. Anthony

New York recently amended its Health and Essential Rights Act (“HERO Act”) and published its “Model Airborne Infectious Disease Exposure Prevention Plan.” While the Model Plan specifies that there is currently no airborne infectious disease outbreak, the HERO Act requires New York employers to take steps now to comply with the statute. “Airborne infectious disease” is defined as any infectious, viral, bacterial, or fungal disease that is transmissible through the air in the form of aerosol particles or droplets and is designated by the Commissioner of Health as a highly communicable disease that presents a serious risk of harm to the public health. While COVID-19 would have been so designated a year ago, it is not so designated at this time. Likewise, unless designated by the Commissioner of Health, the seasonal flu will not qualify. See the New York Department of Labor Airborne Infectious Disease Exposure Prevention Standard here: The Airborne Infectious Disease Exposure Prevention Standard (ny.gov). Nevertheless, employers cannot wait until an outbreak is declared to comply with the statute.

What Employers Need to Know

The Act has broad definitions of “employer,” “employee,” and “work site.” “Employer” includes any person, entity, business, corporation, partnership, limited liability company, or association employing, hiring, or paying for the labor of any individual. “Employee” means any person providing labor or services for remuneration within the state and without regard to immigration status. The definition includes independent contractors. A “work site” means any physical space, including vehicles, where work is performed and the employer has the ability to exercise control. A work site includes employer-provided housing and transportation. Thankfully, employees’ own homes and vehicles are not covered.

The Act prohibits employers from retaliating or taking adverse action against any employee who exercises rights under the statute; reports violations of the statute; reports airborne infectious disease exposure; or refuses to work where the employee reasonably believes, in good faith, that such work exposes employees to an airborne infectious disease due to working conditions inconsistent with the law. The law, however, requires the employee to first notify the employer of the problem and then give the employer an opportunity to cure it.

Continue reading “New York’s HERO Act: What Employers Need to Know; What Employers Need to Do Right Now”
%d bloggers like this: