Article Updated 11/10/2021. An update to this article can be found HERE.

While the Fifth Circuit has issued a temporary stay on implementation of OSHA’s Emergency Temporary Standard for large employers, this is not the final word.  The next step will be for the various lawsuits (there are others pending in the 6th, 7th, 8th, 11th, and DC Circuits) to be consolidated and assigned to a single court of appeals – to be chosen by lottery (yes, you read that correctly…).  That process is likely to occur next week, but it may be months before we have a ruling – and any decision is likely to be appealed to the Supreme Court.

In the meantime, employers should take reasonable measures to prepare for compliance, to avoid being forced to prepare the necessary policies and implement procedures on short notice if the standards survive legal challenge – whether in whole or in part.   Note also that the Fifth Circuit’s ruling does not affect the federal contractor or healthcare worker mandates.

The White House earlier today (November 4th, 2021) announced the release of:

1) OSHA’s Emergency Temporary Standard requiring employers with 100 or more employees to require workers to be vaccinated or tested weekly;

2) Vaccination requirements for healthcare workers at facilities participating in Medicare and Medicaid facilities; and

3) Extension of the deadline for federal employees and contractors to be vaccinated from December 8, 2021 to January 4, 2022.

Highlights of the nearly 500 page OSHA rule for large employers include:

As of January 4, 2022:

• Employees must be vaccinated or be tested weekly – at their own expense;

As of December 5, 2021:

• Employers must provide employees with up to 4 hours of paid time to get the vaccine, and “reasonable” paid sick time to recover from any side-effects – as of December 5, 2021; and
• All unvaccinated employees are required to wear masks in the workplace.

https://public-inspection.federalregister.gov/2021-23643.pdf

The new CMS vaccination requirements for healthcare facilities and workers include:

• Employees must be fully vaccinated by January 4, 2022, with no testing option and regardless of type of position;
• Applies to any facility that receives Medicare or Medicaid funds;
• Applies to individuals who provide treatment or other services for the covered facility under contract or other arrangements.

https://public-inspection.federalregister.gov/2021-23831.pdf

This announcement follows additional updated FAQs from the Safer Federal Workforce Task Force, which provide federal contractors with additional guidance and flexibility with respect to compliance with the September 24, 2021 Guidance for Federal Contractors and Subcontractors.

(https://www.saferfederalworkforce.gov/downloads/Draft%20contractor%20guidance%20doc_20210922.pdf

CGA’s Employment Law group is currently analyzing these new developments and evaluating the impact on affected organizations.

Please join us via Zoom on Thursday, November 11, 2021 at 12:30 PM to review these developments. Register for the event HERE.

Please email any questions to Attorney Christine Nentwig at [email protected] in advance, and we will do our best to incorporate them into the meeting.

Attorney Christine E. Nentwig

Christine Nentwig serves as Co-Chair of CGA’s Labor and Employment Law Group and is also a member of the firm’s Business Law Group. Her practice focuses on the representation of businesses regarding complex labor and employment matters in both the private and public sector. She has more than 25 years of combined experience as a labor and employment attorney, both in central Pennsylvania and downtown Chicago, and as a human resource professional with several Fortune 500 organizations.