LIEB BLOG

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Showing posts with label 100 or more. Show all posts
Showing posts with label 100 or more. Show all posts

Monday, December 20, 2021

Vaccine Mandates are Here - OSHA's Emergency Temporary Standard is Upheld - If You Don't Like it, Seek a Variance / Accomodation NOW

On 12/17/2021, the Sixth Circuit Court of Appeals upheld the OSHA vaccine mandate for employers with 100 or more employees


Per OSHA, citations for non-compliance will start on January 10, 2022. These citations are going to be huge with penalties for non-compliance set at:

Type of ViolationPenalty
Serious
Other-Than-Serious
Posting Requirements
$13,653 per violation
Failure to Abate$13,653 per day beyond the abatement date
Willful or Repeated$136,532 per violation

To remind employers, and according to the Circuit Court, the Emergency Temporary Standard of 11/5/2021 "requires that employees be vaccinated or wear a protective face covering and take weekly tests but allows employers to choose the policy implementing those requirements that is best suited to their workplace." 

If you are questioning why OSHA has the authority to issue this Emergency Temporary Standard, the Circuit Court explained that "OSHA is charged with ensuring worker safety and health 'by developing innovative methods, techniques, and approaches for dealing with occupational safety and health problems.'” Plus, it can make an Emergency Temporary Standard if it determines “that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards,” and (2) that an “emergency standard is necessary to protect employees from such danger.”

If you are still unconvinced and if you are an employer that doesn't want to follow the Emergency Temporary Standard don't just ignore it. Instead, seek a variance from the standard, which is available if you can demonstrate “that the conditions, practices, means, methods, operations, or processes used or proposed to be used by an employer will provide employment and places of employment to his employees which are as safe and healthful as those which would prevail if he complied with the standard.”

If you are an unconvinced employee, seek a reasonable accommodation based upon your sincerely held religious belief or disability.

If you are instead wrongfully relying on the Fifth Circuit's stay of these guidelines, DON'T. The Sixth Circuit is the final word unless the Supreme Court elects to hear the case. The difference between the Circuit Courts' decisions came down to the enabling statute 29 USC 655(c)(1) and OSHA's authority to issue the Emergency Temporary Standard (yes, there were differences about almost everything all the way to the Commerce Clause, but that wasn't the heart of the decisions). Section 655(c)(1) provides that OSHA is required "to issue an emergency standard if necessary to protect workers from a “grave danger” presented by 'exposure to substances or agents determined to be toxic or physically harmful or from new hazards.'" Whereas the Fifth Circuit defined the terms in that phrase ("substances or agents," "toxic or physically harmful," and "grave danger,") narrowly, the Sixth Circuit took a broader holistic view. As such, this entire issue isn't about COVID, vaccines, mandates, workers, liberty, or rights. Instead, this all comes down to the rules of statutory interpretation. 



Tuesday, November 09, 2021

OSHA Vaccine Stay in 5th Circuit - What Does That Mean - Nothing?

On November 6, 2021, the 5th Circuit Court of Appeals stayed the OSHA Vaccine Emergency Temporary Standard (which we explained in this blog). However, the Circuit set a short briefing schedule and required the Government to respond to petitioners' motion for a permanent injunction by 5:00 PM on November 8th, which they did, and the petitioners to reply by 5:00 PM on November 9th, which they did


However, the stay seems to be a splashy headline about absolutely nothing. Specifically, the Emergency Temporary Standard's compliance date is not until January 4, 2022 and it impossible that the legality of the Emergency Temporary Standard is not determined before then. More so, as the Government points out, in great detail within their response, this case will be in Multidstrict Litigation "on or about November 16—21 days before the December 7 date that petitioners allege is the earliest date that any employee could be required to receive a vaccine and 51 days before petitioners’ employees would be required to start testing." Here, the 5th Circuit choosing to go it alone, is really strange. 


Regardless, the ultimate determination in this case will likely involve a ruling as to whether the United States Code (29 USC 655(c)), permitted OSHA to issue the vaccine Emergency Temporary Standard. The applicable Code section reads:

OSHA shall provide, without regard to the requirements

of chapter 5, title 5, United States Code [5 USCS §§ 500

et seq.], for an emergency temporary standard to take

immediate effect upon publication in the Federal Register

if he determines (A) that employees are exposed to grave

danger from exposure to substances or agents determined

to be toxic or physically harmful or from new hazards, and

(B) that such emergency standard is necessary to protect

employees from such danger.

Stated otherwise, the question before the Multidistrict Court is going to be whether OSHA has power to issue the Standard. To get to that answer, it is helpful to understand that a grave danger means one that causes "incurable, permanent, or fatal consequences to workers, as opposed to easily curable and fleeting effects on their health," according to precedent. 


Now, to make matters even more interesting, even if OSHA loses on this Emergency Temporary Standard before the Multidistrict Court, it can nonetheless issue a vaccine requirement through traditional rulemaking so long as such a requirement is "'reasonably necessary or appropriate' to address a 'significant risk' of harm in the workplace." As you can see, we are just in the starting gate and this horse race hasn't yet even started. Stay tuned.