The wait is over. On Jan.13, 2022, the United States Supreme Court issued a decision to stay the Occupational Health and Safety Administration’s (OSHA) vaccination or test emergency temporary standard (ETS), effectively blocking the enforcement of the ETS for the foreseeable future.
It seems that change is the only constant when it comes to OSHA’s Vax or Test Emergency Temporary Standard (ETS). Here is the current status:
The Supreme Court’s Decision is Pending
On Friday, Jan. 7, the United States Supreme Court heard oral arguments regarding the ETS at a special session of the Court.1 Challengers to the ETS requested that the Court issue a stay to stop the ETS before Jan. 10, stating that the mandate was overly broad and was a question that should be left to Congress or to be decided at the state-specific level. Though one cannot predict how the Court will rule, based on their line of questioning, a majority of the justices appeared to be skeptical of the ETS with Justice Alito quoting the late Justice Scalia when he described OSHA’s interpretation as “squeezing an elephant into a mousehole.” At the hearing, Justice Gorsuch and Justice Kavanaugh focused on the Major Questions Doctrine.2 The justices also focused on whether OSHA had the authority to mandate a vaccine that impacts not only the workplace, but also employees’ lives outside the workplace, and is, to quote Chief Justice Roberts, an “out-in-the-world issue.” Additionally, the justices floated the idea of issuing a brief administrative stay until they could make a decision. Solicitor General Prelogar, appearing for OSHA, obviously disagreed and said that the Jan. 10 deadline did not pose a major burden on businesses, except for imposing mask requirements. The Court has announced that it will be issuing “one or more opinions” on Jan. 13. It is unclear if one of these opinions will be with respect to the ETS. We are awaiting the Court’s decision and will keep you informed.
On Dec. 24, 2021, the New York State Department of Health (NYSDOH) issued updated isolation and quarantine guidance for fully vaccinated healthcare and other essential workers infected with COVID-19, allowing them to return to work after five days of isolation, so long as each worker is asymptomatic, or their symptoms have mostly resolved.
On Dec. 22, 2021, New York published its final paid sick leave regulations. These regulations are identical to the proposed regulations, initially published on Dec. 9, 2020. New York Paid Sick Leave (PSL) requires employers to provide paid leave to employees relating to an employee’s or an employee’s family member’s medical needs, or for reasons relating to domestic violence and similar offenses. Since Jan. 1, 2021, employers have been required to provide this leave to all New York employees.
On Dec. 22, the New York State Department of Labor (NYSDOL) published long-awaited proposed regulations relating to the second half of the NY HERO Act relating to workplace safety committees.
By way of brief background, on May 5, 2021 the state signed the NY HERO Act into law. The NY HERO Act added two new sections to the New York Labor Law: (1) New York Labor Law Section 218-b, regarding occupational exposure to airborne infectious disease, which created certain obligations for private employers and protections for employees, including the requirement to adopt an “airborne disease exposure prevention plan”; and (2) New York Labor Law Section 27-d, dealing with employee rights to form workplace safety committees. The first part of the NY HERO Act (NYLL 218-b) went into effect on July 4, 2021. The second part of the NY HERO Act (NYLL 27-d) went into effect on Nov. 1, 2021.
It seems that new details about the status of OSHA’s Vax or Test Emergency Temporary Standard (ETS) are emerging daily! On Dec. 22, 2021, the United States Supreme Court announced that it will expedite hearing arguments regarding the ETS at a special session of the Court on Jan. 7, 2022.1 This announcement comes on the heels of a rapid succession of litigation and court orders. In early November 2021, the Fifth Circuit had temporarily stayed implementation of the ETS, which was later lifted by the Sixth Circuit on Dec. 17. Almost immediately, plaintiffs challenging the ETS filed several requests with the Court asking the justices to order an emergency stay of the rule. Please review Bond’s Dec. 20, 2021 blog post for additional details.
On Friday, December 17, 2021, the U.S. Court of Appeals for the Sixth Circuit lifted the Fifth Circuit’s stay order on the Occupational Safety and Health Administration’s (OSHA) COVID-19 Vaccination or Test and Mask Emergency Temporary Standard (ETS). The ETS applies to employers with 100 or more workers and impacts over 80 million workers in the United States. Under the rule as issued, employers have one of two choices. The first option is to mandate and verify that all of their employees are vaccinated against COVID-19. Employers not enacting the first option would be required to test unvaccinated employees weekly for COVID-19 and ensure these employees wear masks in the workplace. OSHA has announced it will begin issuing citations for noncompliance with the ETS’ administrative requirements after January 10, 2022, and the ETS’ testing requirements after February 9, 2022.
On Dec. 15, 2021, the Acting NYS Commissioner of Health, Mary T. Bassett, M.D., M.P.H., announced the third extension of the designation of COVID-19 as a “highly contagious communicable disease that presents a serious risk of harm to the public health” through Jan. 15, 2022.
Ever since the New York State Department of Labor (NYSDOL) announced an increase in the minimum wage from $12.50 per hour to $13.20 per hour in areas outside of New York City, Nassau, Suffolk and Westchester counties effective Dec. 31, 2021, we have been expecting a proportionate increase in the minimum weekly salary to qualify for the executive and administrative exemptions. For the last few years, the minimum weekly salary to qualify for the executive and administrative exemptions has been 75 times the minimum hourly wage. The NYSDOL has confirmed that this proportionate increase will occur effective on Dec. 31, 2021.
On Dec. 10, 2021, at the direction of Gov. Kathy Hochul, the acting commissioner of the New York State Department of Health issued a new mask mandate that applies to several specific public settings, including health care and adult care facilities, K-12 schools, correctional facilities, homeless shelters and public transportation centers and hubs. Importantly, the mask mandate also includes a general provision applicable to “all indoor public places” not otherwise covered by the mandate. This general provision is broadly applicable and impacts businesses across the state.
On Dec. 2, 2021, the Office of Federal Contract Compliance Programs (OFCCP) revealed its new online system that will be used to track and review federal contractors’ Affirmative Action Program (AAP) compliance.
On Nov. 8, 2021, New York Gov. Kathy Hochul signed a bill amending New York’s Civil Rights Law by adding a new section that requires employers to give prior written notice of any electronic monitoring to employees upon hire. The law takes effect on May 7, 2022. The law applies to all private sector employers in New York, regardless of the size of the employer.