Even though the calendar has not even turned to February, we already have seen major updates on the federal government’s COVID-19 rules and guidance.  This past week proved no different.  On Friday, January 21, 2022, a Texas federal judge blocked, on a nationwide basis, President Biden’s executive order mandating that federal workers get a COVID-19 vaccine.  The Justice Department already appealed the injunction and only time will tell how that mandate is resolved.

Also on Friday, January 21, the Department of Labor (“DoL”) issued Fact Sheet #84, which addressed the compensability of time spent undergoing COVID-19 health screenings, testing, and vaccinations under the Fair Labor Standards Act.  In particular, the Fact Sheet gave advice concerning the following circumstances:

  • Activities Occurring During Normal Working Hours: The DoL first clarified that health and safety measures that occur during normal working hours are compensable and stated: [I]f an employer requires an employee to obtain a COVID-19 vaccine dose, undergo a COVID-19 test, or engage in a COVID-19 related health screening or temperature check during the employee’s normal working hours, the time that the employee spends engaged in the activity is compensable.
  • Activities Outside of Normal Working Hours: The DoL also addressed whether time spent undergoing health and safety measures outside of normal working hours – such as getting vaccinated – is compensable. In particular, the Fact Sheet stated that: Employers must pay employees who report to a workplace where other individuals are present and who do not work exclusively outdoors for time spent going to, waiting for, and obtaining a mandatory COVID-19 vaccine dose because it is necessary that employees be able to perform their jobs safely and effectively during the pandemic
  • Compensation for Time Spent Testing: Finally, the DoL also addressed whether time spent undergoing testing is compensable. Where an employer mandates the vaccine and an employee undergoes testing as a reasonable accommodation based upon a religious or medical exemption, time spent undergoing testing outside of normal working hours is compensable.  However, where an employee can provide regular proof of testing as an alternative to getting vaccinated, the employer does not have to pay for time spent undergoing testing.

Later that same day, the DoL withdrew Fact Sheet #84 (likely because it is rife with references to the OSHA ETS).  Since it was withdrawn, the Fact Sheet should be considered unofficial.  However, it’s substantive and useful guidance concerning the compensability of time spent undergoing COVID-19 health screenings, testing, and vaccinations should not be ignored.

Finally, effective Wednesday, January 26, 2022, OSHA officially withdrew its ETS regarding COVID-19 vaccination and testing requirements.  In doing so, OSHA stated that it plans to implement a “permanent COVID-19 Healthcare Standard.”  In its decision, the Supreme Court had said that OSHA has the power to regulate risks related to COVID-19 that are “occupation specific” based on a worker’s job or workplace.  This gave OSHA an avenue to issue a narrower rule and likely is what OSHA will pursue in a “permanent COVID-19 Healthcare Standard.”

Frantz Ward will continue to monitor developments as it relates to administrative rules, regulations, and guidance concerning the COVID-19 pandemic.  If you have questions about this or other Labor and Employment issues, please contact Andrew Cleves or another member of the Frantz Ward Labor and Employment Practice Group.

The Biden Administration recently issued an Order requiring insurance companies and group health plans to cover the cost of at-home COVID-19 tests. The Administration did not give much time to prepare as it required insurance companies and group health plans to cover the cost of these tests starting January 15th.

Preferred Pharmacies or Retailers: On January 10th, the Department of Labor (“DOL”) published a Frequently Asked Questions page to help implement the Administration’s Order. There, the DOL explained that plans and insurers cannot limit coverage to tests that are only provided through preferred pharmacies or other retailers, and that participants, beneficiaries, and enrollees should receive reasonable reimbursement for OTC COVID-19 tests purchased from pharmacies or retailers of their choice. However, plans and insurers can make tests available through, and encourage the use of, preferred retailers.

Reimbursement: The DOL also explained that plans or issuers are not required to provide coverage by reimbursing sellers of OTC COVID-19 tests directly (“direct coverage”) but may, instead, require a participant, beneficiary, or enrollee who purchases an OTC COVID-19 test to submit a claim for reimbursement to the plan or issuer. However, the DOL also strongly encourages plans or issuers to provide direct coverage for OTC COVID-19 tests to participants, beneficiaries, and enrollees by reimbursing sellers directly.

Limit on the Number of Tests: Under the Administration’s Order, there is no limit on the number of tests, including at-home tests, that are covered if ordered or administered by a health care provider following an individualized clinical assessment. However, OTC COVID-19 tests purchased without an individualized clinical assessment may be capped at no less than 8 tests per 30-day period (or per calendar month). This means that a family of four, all on the same plan, would be able to get up to 32 of these tests covered by their health plan per month. When plans and insurers make tests available for upfront coverage through preferred pharmacies or retailers, they are still required to reimburse tests purchased by consumers outside of that network, at a rate of up to $12 per individual test (or the cost of the test, if less than $12).

The United States Supreme Court (“SCOTUS”) issued its decisions on the Biden Administration’s testing and vaccination mandates earlier today. The court was divided in both cases. The court ruled 6-3 in blocking the Occupational Health and Safety Administration’s (“OSHA”) Emergency Temporary Standard (“ETS”) which required that employers with 100 or more employees require employees to get a COVID-19 vaccination or to comply with a masking and testing policy.

The court, however, ruled 5-4 in upholding mandatory vaccinations for Medicare and Medicaid providers under the Centers for Medicare and Medicaid (“CMS”) Interim Final Rule which requires most Medicare and Medicaid certified providers and suppliers to vaccinate staff members within 60 days.

Did the federal government overreach when it issued emergency rules forcing employers to impose vaccine mandates? The United States Supreme Court will take up that important question today when it examines emergency COVID-19 vaccine rules issued by the Occupational Safety and Health Administration and the Centers for Medicare & Medicaid Services.

The Supreme Court will conduct two hours of oral argument today pitting representatives of the Biden administration against states and trade groups who are challenging the federal COVID-19 vaccination rules. One of the key issues with regard to the OSHA rule will be whether the circumstances involve “grave danger” significant enough to allow OSHA to impose the rules without first seeking public feedback. With regard to the CMS rule, the issues will include whether the agency exceeded its statutory authority and whether the agency should have conducted a public notice-and-comment period before issuing the rule.

The Supreme Court will address the OSHA and CMS rules separately, which means that it could allow both to take effect, it could block both, or it could allow one to take effect while blocking the other. Regardless, employers in all sectors will be anxiously awaiting the Supreme Court’s decision, since certain of the emergency rules could take effect as soon as Monday, January 10.

Notably, all nine Supreme Court justices are reported to be fully vaccinated and boosted.

We will continue to monitor this situation. If you have questions about this or other Labor and Employment issues, contact Brian Kelly or another member of the Frantz Ward Labor and Employment Practice Group.

On December 27, 2021, the National Labor Relations Board (“NLRB”) invited public briefing on a critical issue affecting employers (and especially gig economy companies and workers) regarding independent contractor status. In 2019, the republican-controlled NLRB in SuperShuttle DFW, Inc., 367 NLRB 75 (2019), made it easier for employers to prove independent contractor status by reaffirming adherence to the NLRB’s traditional common law agency test. In SuperShuttle, the NRLB found that entrepreneurial opportunity for economic gain is a relevant factor to show a putative contractor is rendering services as part of an independent business. This overruled the prior standard contained in FedEx Home Delivery, 361 NLRB 610 (2014), which made it more difficult to prove independent contractor status. The NLRB’s request for public briefing on the issue is part of a pending case involving makeup artists, wig artists and hairstylists at the Atlanta Opera, Inc., who are attempting to unionize. Given the current democratic board majority, it is possible that in 2022 the NLRB independent contractor test may revert back to the FedEx test and overrule the existing SuperShuttle test. The Frantz Ward Labor and Employment Group will continue to monitor and report on these developments.

Since the start of the pandemic, much of the discourse regarding COVID-19 and workers’ compensation has centered around questions of compensability—that is, under what circumstances contraction of COVID-19 can qualify as a compensable workers’ compensation claim, what types of benefits are available for covered employees, and what types of defenses employers may have at their avail. As more and more employers consider and implement mandatory vaccination and booster policies, additional questions have arisen regarding the fairly novel—though not entirely COVID-19-exclusive—issue of the compensability of vaccination and booster side effects.

The most common side effects associated with COVID-19 vaccinations and boosters, according to the CDC’s website here, are pain and swelling in the arm where the shot was administered and tiredness, headaches, muscle pain, chills, fever, and nausea throughout the rest of the body. Again according to the CDC, not everyone experiences all or even any of these side effects, and even those who do should feel back to normal after a few days. The CDC website also notes that rare cases of myocarditis (inflammation of the heart muscle) and pericarditis (inflammation of the outer lining of the heart) have been reported following the Pfizer and Moderna vaccines and mentions “severe allergic reactions” to any of the COVID-19 vaccines as a possibility. Of course, studies regarding the long-term side effects are ongoing and a wide range of opinions regarding possible long-term and short-term side effects can be found depending on where you look.

Even for just those common side effects lasting only a few days, there can be workers’ compensation implications. Certainly, an allergic reaction, even a minor one, can qualify as a compensable medical condition; the question for COVID-19 vaccine and booster side effects is whether it they are sufficiently connected to the employment to constitute a workers’ compensation claim. That question comes down to the nature and circumstances of the vaccination. For employees who voluntarily decide on their own to get vaccinated, there is no real connection to the employment and therefore no claim. For employees whose jobs require them to be vaccinated as part of a mandatory-vaccination policy, however, there is a direct link to their employment and there will likely be a compensable claim for adverse side effects to the vaccine. Then there is the gray area in between—employers encouraging or even offering vaccinations to their employees, but not strictly requiring them. Generally, if the vaccination is not mandatory, even if offered by the employer and administered right on the premises, side effects will likely not be compensable unless the employee can show that the vaccination was somehow made “basically” mandatory by the actions of their employer, requiring a very fact-specific analysis.

It is not all bad news for mandatory-vaccination employers in Ohio, however. Based on current evidence, it seems that the vast majority of potential claims for COVID-19 vaccine side effects will be fairly insignificant in terms of the financial exposure to employers, whether directly as self-insured employers or via impact to BWC premiums for state-fund employers. It appears that most of these side effects require little to no medical attention, with medical bills usually limited to a single hospital visit if there is any treatment at all. Moreover, for claims in Ohio, there is no compensable lost time if the claimant is out of work for less than seven days, while the most common side effects typically last no more than a few days. As such, for Ohio employers deciding whether to implement mandatory vaccination policies, the workers’ compensation exposure for vaccine side effects should not be a crucial factor in the analysis.

Over the weekend, in a 2-1 decision, the Sixth Circuit lifted the stay of OSHA’s Emergency Temporary Standard (“ETS”) regarding mandatory employee vaccination or testing requirements. The ETS was originally issued on November 5, 2021 but was stayed by the Fifth Circuit on November 6, 2021.

In its decision to lift the stay, the Sixth Circuit determined that OSHA did not exceed its statutory authority by issuing the ETS, noting that “OSHA’s authority includes protection against infectious diseases that present a significant risk in the workplace, without regard to exposure to that same hazard in some form outside the workplace.” The Sixth Circuit also determined that OSHA sufficiently demonstrated the danger that COVID-19 poses to workers and that the ETS is necessary to protect employees from that grave danger.

Shortly after the Sixth Circuit announced its decision, OSHA updated the schedule for employers to comply with the ETS’ requirements to January 10, 2022 and February 9, 2022.

As a refresher, the primary provisions of the ETS are outlined below:

  • WHO:
    • The ETS applies to employers with 100 or more employees.
  • WHAT:
    • Covered employers must ensure that all employees are fully vaccinated or produce a negative COVID-19 test result on at least a weekly basis.
  • WHEN:
    • January 10, 2022: Employers must have a written vaccination policy and all other vaccine or test requirements in place.
    • February 9, 2022: All employees must be vaccinated or show weekly proof of a negative COVID-19 test.

Despite the Sixth Circuit’s ruling, the future of the ETS remains unclear, as it has been reported that several appeals have already been filed to the United States Supreme Court. Certain groups have asked the Supreme Court to intervene on the case as part of its “emergency docket,” which could expedite the review process. Justice Brett Kavanaugh, an appointee of President Trump, is the Justice responsible for overseeing appeals from the Sixth circuit.

Given the political messaging behind the ETS, it is possible that it will be stayed once again in the near future. In the meantime, however, employers should exercise reasonable, good faith efforts to come into compliance with the ETS by January 10th and February 9th. Feel free to reach out to Megan Bennett, Jon Scandling or any member of Frantz Ward’s labor & employment group if you have additional questions regarding the ETS, or its current state.

A recent barrage of federal injunctions has caused substantial confusion for employers who were preparing to comply with federal vaccine mandates, including mandates involving OSHA, CMS and federal contractors. As a result, many covered employers are re-evaluating their plans to take the following points into consideration:

  1. The federal injunctions stop the government from forcing certain covered employers to comply with specific mandates for the time being;
  2. The federal injunctions do not prohibit an employer from going forward with vaccination-related programs voluntarily if the employer decides that doing so is in the best interests of its business, and if the programs comply with any applicable state and local laws;
  3. If a covered employer would prefer not to go forward with a mandate-compliant program at this time that was impacted by an injunction, the employer can put its program on hold pending the outcome of the court cases and/or further action by the government to modify or withdraw the mandates; and
  4. If an employer puts a program on hold, it should still maintain reasonable policies and procedures to advance workplace safety, including appropriate policies and procedures relating to face coverings, distancing and disinfection.

More guidance is likely to become available from the courts and the federal agencies in the days and weeks to come. If you have questions about this or other Labor and Employment issues in the meantime, contact Brian Kelly or another member of the Frantz Ward Labor and Employment Practice Group.

As we all know by now, on November 5, 2021, the Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS) to protect workers in businesses with more than 100 employees from the Coronavirus, and on November 6, 2021, the Fifth Circuit Court of Appeals stayed enforcement of the ETS. B.S.T. Holdings, LLC, et al. v OSHA, et al., No. 21-60845.

In anticipation and with the hope that the stay will be lifted at some point and that the ETS will go into effect, on November 10, 2021, the National Labor Relations Board’s (NLRB) Office of the General Counsel, Division of Operations Management, issued a Memo (the Memo) to the NLRB’s Regional Directors, Officers-in-Charge and Resident Officers regarding how to respond to inquiries the NLRB is receiving  with respect to collective bargaining obligations under the ETS.

The Memo essentially states two things: 1) that an employer must bargain with a union that represents its employees about any requirements of the ETS where the employer has discretion as to their implementation; and 2) to the extent an employer does not have discretion as to the implementation of certain requirements of the ETS, it still must bargain with the union representing its employees as to the effect of those requirements.

More specifically, the Memo states that, “Although an employer is relieved of its duty to bargain where a specific change in terms and conditions of employment is statutorily mandated, the employer may not act unilaterally so long as it has some discretion in implementing those requirements.”  In other words, while OSHA may mandate certain requirements that must be followed by employers despite the existence of a collective bargaining agreement, to the extent the ETS provides employers with options as to how to implement some of the requirements of the ETS, an employer must bargain with the union representing its employees as to implementation of those requirements:  “the General Counsel’s position is that covered employers would have decisional bargaining obligations regarding aspects of the ETS that affect terms and conditions of employment—to the extent the ETS provides employers with choices regarding implementation.”

The Memo goes on to state that where an employer does not have discretion over certain requirements of the ETS, it must nevertheless bargain with its employees’ union regarding the effect of those requirements: “To the extent elements of the ETS do not give covered employers discretion, leaving aside decisional bargaining obligations, the employer is nonetheless obligated to bargain about the effects of the decision.

I. Introduction
Today, less than two months after receiving the directive from President Biden, OSHA released its Emergency Temporary Standard that will affect two-thirds of the nation’s private workforce.

While most of the 490-page document includes detailed legal and scientific discussion (presumably in an effort to pre-empt expected legal challenges), the 15 or so pages of the ETS itself along with a detailed FAQ provide employers with answers to some, but not all of the questions anticipated by employers in the months-long lead up, as well as raising entirely new questions.

II. Are you a Covered Employer under the ETS?
The first and most basic question as to how the 100-employee threshold would be calculated and whether employers would be covered by the ETS has been largely answered through today’s materials: OSHA directs employers to make this determination as of the effective date of the standard (i.e. tomorrow, November 5, 2021 when the ETS is officially published) and should be made based on the total number of employees who work at any location an employer has in the United States, including employees who work remotely. OSHA specifically includes part-time employees, minors, and temporary and seasonal workers as those who should count towards the threshold, to the extent they are employees at any time during the six months the ETS is in effect. In addition, an employer who has less than 100 employees as of November 5, 2021, but exceeds that number at any time during the 6-months thereafter, becomes responsible for compliance with the ETS requirements for the remainder of the six-month period.

Special guidance for staffing and construction companies is included in OSHA’s FAQ.

The ETS also specifically excludes from coverage any workplace already covered under President Biden’s Executive Order mandating vaccinations for Federal Contractor and Subcontractors or the OSHA ETS previously issued in June 2021 relating specifically to healthcare workers.

In answering a question posed by many, OSHA relays its confidence in employers with 100 or more employees to bear the administrative burden of implementing the standard’s requirements in a prompt fashion, but was less confident with respect to smaller employers. OSHA does intend, however, to assess application of the mandate to smaller employers and is seeking comment to help the agency make that determination.

III. If You’re Covered, What is Required?
For covered employers, the ETS establishes various vaccination, vaccination verification, face covering, testing, paid leave and recordkeeping requirements, summarized below:

Mandatory Vaccination Policy: the crux of the ETS is to require employers to develop, implement and enforce a written, mandatory vaccination policy. In an effort to stem the threatened exodus by many unvaccinated employees from private workforces, the ETS makes clear that an employer may choose to implement a company-wide mandatory vaccination policy as soon as practicable (with language addressing legally-recognized exemptions for medical and religious reasons) or implement a policy that allows employees to choose between full vaccination or weekly testing combined with face coverings, as defined in the ETS, in indoor workspaces. OSHA also explicitly permits employers to develop and implement partial mandatory vaccination policies – in other words, policies that include mandatory vaccination requirements for only a portion of their workforce, while treating vaccination as optional for others. It also specifically notes that the ETS requirements do not apply to employees who do not interact with and are not exposed to others in the course of performing their job duties, including employees who work from home, who work exclusively outdoors, and who do not report to a workplace where other people (co-workers or customers) are present.

Vaccination Defined:   OSHA’s definition of vaccination is consistent with that used by the CDC. OSHA requires “full” vaccination, which includes not only the full dose of an FDA or World Health Organization approved/authorized vaccination and compliance with the minimum recommended interval between doses, but also the two-week period following a person’s last primary dose. There are no exemptions in the ETS to vaccination requirements based on “natural immunity” or the presence of antibodies from a previous infection. The ETS treats those previously infected with COVID as unvaccinated for purposes of compliance.

Proof of Vaccination: with respect to the requisite proof of vaccination status required by the ETS, OSHA indicates that the following, among others, may be acceptable forms of proof: a record of immunization from a healthcare provider or pharmacy; a copy of a person’s signed COVID-19 vaccination card; medical records documenting or confirming vaccination; or public health or state immunization information system records/copies. For employees who are unable, for whatever reason, to produce acceptable proof, employers are permitted to require a written signed and dated statement by the employee, to include: attestation of the employee’s vaccination status (full or partial), their loss of and/or inability to produce proof of vaccination; and the language “I declare (or certify, verify, or state” that this statement about my vaccination stats is true and accurate. I understand that knowingly providing false information regarding my vaccination status on this form may subject me to criminal penalties.”  The statement should also include information from the employee regarding the name and type of vaccine they received, the date(s) they received their dose(s), where they received them and the name of the entity or healthcare provider administering the dose(s).

Paid time off: Consistent with OSHA’s June 2021 healthcare ETS, employees are entitled to receive up to four hours of paid time off to receive each does of the vaccination (including time spent traveling, but only if the vaccination is received during normal work hours) at their regular rate of pay, as well as “reasonable time and paid sick leave” to recover from the side effects of each does of the vaccine. Recognizing the potential for abuse, OSHA specifically permits employers to cap the amount of paid time off they must provide to employees recovering from the side effects of vaccination, indicating that a two-day cap, per dose, would be considered reasonable. As expected, the ETS also allows employers to require employees to use accrued sick time or general PTO time when recovering from vaccination side effects. Travel costs associated with vaccinations (e.g., mileage reimbursement) are not required to be paid to employees under the ETS.
Neither OSHA nor the Department of Labor more broadly has provided any indication that federal funding or tax credits are contemplated for employers providing paid time off to employees under the ETS.

Testing: “Who will bear the cost of testing?” has been a question and significant concern for employers waiting for the ETS. While OSHA has traditionally placed the burden of workplace health and safety (financial and otherwise) primarily on employers, the ETS does not require employers to pay for an employee’s choice to be tested weekly in lieu of receiving the COVID-19 vaccination and, instead, places the burden of cost on unvaccinated employees. Employers are cautioned, however, under the ETS to remain mindful of other federal, state, and local laws and collective bargaining agreements that may state or require otherwise, including O.R.C. 4113.21 and the Americans with Disabilities Act (regarding employer obligations to pay for medical examinations) and minimum wage and compensable time issues under the federal Fair Labor Standards Act.

The ETS also addresses potential fraud in a second way, with respect to the testing results required to be submitted by unvaccinated employees. OSHA included the requirement for some type of independent confirmation of the test result given the “many social and financial pressures for test-takers to misrepresent their results,” by requiring unvaccinated employees to undergo tests that are: 1) cleared, approved, or authorized (emergency or otherwise), by the FDA to detect current infection with the SARS-CoV-2 virus (e.g., a viral test); (2) administered in accordance with the authorized instructions; and (3) not both self-administered and self-read unless observed by the employer or an authorized telehealth proctor. Again, antibody tests do not need these requirements, although tests with specimens that are processed by a laboratory (including home or on-site collected specimens which are processed either individually or as pooled specimens), proctored over-the-counter tests, point of care tests, and tests where specimen collection and processing is either done or observed by an employer will meet this definition.

The availability and timing of weekly testing of unvaccinated workers has also caused concern for many employers already stretched thin by a tight labor market.

Recordkeeping:  The ETS requires that employers maintain a roster of employee vaccination status. Because vaccination records and test results are considered “medical records,” this information must be maintained as confidential under OSHA’s existing regulations. While OSHA’s existing regulations require employers to maintain and preserve medical records of employees for the duration of employment, plus 30 years after separation, the ETS makes clear that these records and the roster must only be maintained and preserved while the ETS remains in effect.

In addition, the ETS requires that if an employee requests to examine or copy their individual COVID-19 vaccination and test results, or the number of full vaccinated employees at a workplace compared to the total number of employees at that workplace, employers must make that information available to the employee within one business day of the request being made. Employers may also be required to produce this information, as well as a copy of their mandatory vaccination policy and their roster of vaccination status to OSHA within 4 hours of OSHA’s request.

IV. When does the ETS Take Effect and For How Long?
Although the ETS becomes effective immediately, employers have two compliance dates to aim for:

  1. December 5, 2021 for compliance with a written mandatory vaccination policy, determination of employee vaccination status, recordkeeping and all other ETS requirements except for unvaccinated testing; and
  2. January 5, 2022 for compliance with the testing requirements for those not fully vaccinated (including those who have not yet received the requisite number of doses for a primary vaccination series and passed the two-week period following).

Because of the different timing for the three main vaccinations available in the United States, employers are cautioned to keep these dates in mind for purposes of completing the requisite vaccination series by that time.

OSHA anticipates that the ETS will be in effect for six months, or until May 5, 2022, but promises to  continue to monitor trends in COVID-19 infections and deaths as more of the workforce and the general population become vaccinated and the pandemic continues to evolve.

V. In What Other Ways Will the ETS Affect The Workplace?
Significantly, the ETS does not eliminate an employer’s duty to bargain with a representative union over wages, hours, terms and conditions of employment. However, particular provisions of collective bargaining agreements may impact the type of bargaining an employer must engage in with a representative union, whether that be decision or effects bargaining. For example, certain contract language may allow for an employer implement the ETS immediately (and potentially without union involvement), while still bargaining with a representative union regarding the impact of the ETS on employees. Topics such as, who will cover the costs of testing for unvaccinated employees, whether testing will be available, disciplinary measures for not timely reporting tests, and the accommodation process are all likely topics over which bargained will have to take place. Regardless of the type of bargaining, employers should proceed with caution in attempting to unilaterally implement any provision of the ETS.

Employers should also be proactive in ensuring they meet the individual requirements of the ETS rather than relying on good faith efforts, as the ETS conceivably allows for OSHA to cite employers for general compliance and recordkeeping requirements in the absence of employee infections or fatalities. OSHA’s enforcement efforts, including the focus and resources the agency intends to dedicate to this COVID-related ETS as opposed to its National and Regional Emphasis programs, remains to be seen.

VI. Legal Challenges Expected
Despite the myriad of information OSHA has provided, significant questions regarding the ETS remain. Questions regarding enforcement mechanisms, potential penalties, as well as questions regarding the ETS’ express language pre-empting state and local law remain unanswered.

More than 20 states have promised to challenge the most recent ETS in court, President Biden’s Executive Order relating to federal contractors has also been challenged, and no one can predict the outcome of these lawsuits, including how rulings from federal Courts on these two mandates could be inconsistent. For now, employers should prepare to comply with the ETS as best as possible, while also keeping a close eye on OSHA’s guidance – as the situation is likely to change and evolve in the coming weeks.

If you have questions regarding the ETS, including what immediate steps employers should take to meet compliance deadlines, please contact Frantz Ward attorneys Christina Niro or Jon Scandling.