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CORONAVIRUS (COVID-19): GUIDANCE FOR BUSINESSES

Helping Maintain Business Operations


CDC SHORTENS THE RECOMMENDED ISOLATION AND QUARANTINE PERIOD

By Lauren Kulpa & Jill L. Ripke on December 28, 2021
Posted in Business Operations, Employment, Healthcare

In an updated guidance released on December 27, 2021, the Centers for Disease
Control and Prevention (CDC) reduced the recommended isolation and quarantine
period for the general population. The term “isolation” refers to the
recommended behavior after a confirmed COVID-19 infection, while “quarantine” is
the term that applies to the period following a person’s exposure to the virus
or close contact with someone who has COVID-19. According to CDC Director Dr.
Rochelle Walensky, the Omicron variant is spreading quickly, and the “CDC’s
updated recommendations for isolation and quarantine balance what we know about
the spread of the virus and the protection provided by vaccination and booster
doses.” Continue Reading CDC Shortens the Recommended Isolation and Quarantine
Period

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SIXTH CIRCUIT GRANTS THE BIDEN ADMINISTRATION’S MOTION TO DISSOLVE THE STAY OF
THE OSHA VACCINE ETS

By Heather M. Sager & Matthew Goldberg on December 18, 2021
Posted in Business Operations, Employment, Healthcare

On December 17, 2021, the Sixth Circuit granted the Biden Administration’s
motion to Dissolve the Stay of the OSHA Vaccine ETS, which was issued by the
Fifth Circuit on November 5, 2021.  See link to full opinion. Judge Stranch (an
Obama appointee) authored the opinion, which Judge Gibbons (a Bush appointee)
joined. Judge Larsen (a Trump appointee) dissented. Unlike other appellate
panels that have considered vaccine mandates, the Sixth Circuit specifically
held that the Vaccine ETS was: (1) within OSHA’s authority; (2) not covered by
the major questions doctrine (as the Fifth Circuit and the challengers
contended); and (3) promulgated with more than sufficient justification based on
the ongoing COVID-19 pandemic. In addition, the Sixth Circuit rejected
petitioners’ commerce clause and non-delegation arguments. Notably, in lifting
the stay, the Sixth Circuit concluded that Petitioners could not demonstrate the
requisite likelihood of success on the merits or show irreparable injury, both
of which are required for an injunction. This ruling could serve as a blueprint
for local appellate courts to uphold vaccine mandates imposed on a state level.
On November 12, 2021, OSHA announced that it would not attempt to enforce the
ETS while the stay was in place. Now that the stay has been lifted, it remains
to be seen how OSHA will address enforcement and compliance as the merits of the
case proceed. In the meantime, Petitioners are expected to seek review en banc
or to appeal directly to the United States Supreme Court. In the meantime, the
state of Ohio  trucking industry organizations, conservative advocacy groups,
and other opponents of the rule petitioned the U.S. Supreme Court to block the
OSHA.

OSHA has announced that it will not issue citations for noncompliance with any
requirements of the ETS before January 10 and will not issue citations for
noncompliance with the standard’s testing requirements before February 9, so
long as an employer is exercising reasonable, good faith efforts to come into
compliance with the standard.  Businesses and individuals with questions should
contact experienced counsel for guidance on new policies and practices.

 

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CAL/OSHA REVISES COVID-19 EMERGENCY TEMPORARY STANDARDS TO REMOVE DISTINCTIONS
FOR VACCINATED WORKERS

By Matthew Goldberg, Dana Svendsen & Jessica Millar on December 17, 2021
Posted in Employment

The California Occupational Safety and Health Standards Board (Board) readopted
a revised version of its earlier Emergency Temporary Standards (Standard) for
employers on preventing the spread of COVID-19 in the workplace on December 16,
2021. The revised Standard was readopted by a 6-1 vote in the form proposed by
the California Division of Occupational Safety and Health (Division) and will
take effect on January 14, 2022, for a period of 90 days.  Continue Reading
Cal/OSHA Revises COVID-19 Emergency Temporary Standards to Remove Distinctions
for Vaccinated Workers

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EEOC UPDATES ITS COVID-19 RELATED GUIDANCE

By Jill L. Ripke & Adam Weiner on December 15, 2021
Posted in Employment, Labor Relations

On December 14, 2021, the U.S. Equal Employment Opportunity Commission (EEOC)
updated its guidance to affirm that workers who contract COVID-19 can be
protected from discrimination under the Americans with Disabilities Act (ADA).
Depending on an individual employee’s specific circumstances, COVID-19 may
constitute a protected physical or mental disability, may serve as the basis for
an employer’s perception that an employee has a disability, and/or may
contribute to a record of employee impairment. Continue Reading EEOC Updates Its
COVID-19 Related Guidance

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CALIFORNIA REINSTITUTES MASK MANDATE

By Jill L. Ripke, Matthew Goldberg & Jessica Millar on December 14, 2021
Posted in Business Operations

On December 13, 2021, the California Department of Health (CPDH) reinstituted a
statewide mask mandate. From December 15, 2021 through at least January 15,
2022, all individuals will be required to wear masks in indoor public settings.
The mandate applies regardless of vaccination status.

The mandate exempts children under two, persons with medical conditions or
disabilities that prevent masking, hearing impaired persons, and persons for
whom masking would create a risk related to their work (as defined by
regulations and workplace safety guidelines). The mandate does not provide
exemptions for certain businesses or industries.

Additionally, CPDH updated requirements for attending mega events, like concerts
and sporting events. Prior to attending an event, attendees will now require
either proof of vaccination, a negative antigen COVID-19 test within one day of
the event, or a negative PCR test within two days of the event.

Businesses and individuals with questions should contact experienced counsel for
guidance on new policies and practices.

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SIXTH CIRCUIT REJECTS REQUEST TO EXPEDITE BRIEFING TO DISSOLVE INJUNCTION OF
VACCINE EMERGENCY TEMPORARY STANDARD

By Perkins Coie & Matthew Goldberg on December 6, 2021
Posted in Business Operations, Employment

On December 3, 2021, the U.S. Court of Appeals for the Sixth Circuit rejected,
without analysis, the Biden administration’s request to expedite the briefing
schedule on the issue of whether to dissolve an injunction from the U.S. Court
of Appeals for the Fifth Circuit, which stayed enforcement of Occupational
Safety and Health Administration’s vaccine Emergency Temporary Standard (ETS).
 The Fifth Circuit’s November 12 order  is summarized here and the initial stay
is summarized here.

Parties must file briefs opposing the Biden administration’s motion by December
7, and the government must respond by December 10.  As a result, the stay will
remain in place beyond the ETS December 6 deadline, which requires employers
with 100 or more employees to develop a vaccine policy, determine employee
vaccination status, and provide leave for worker vaccination or recovery.  The
ETS is summarized here.

Notably, the Sixth Circuit still has not determined whether a panel of three
judges or the full Sixth Circuit will hear the challenges to the ETS.  Employers
should consult experienced legal counsel for the most up-to-date advice on
vaccine policies and the status of the ETS.

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VACCINE MANDATE FOR FEDERAL CONTRACTORS BLOCKED BY FEDERAL COURT IN KENTUCKY

By Christopher Wilkinson on December 2, 2021
Posted in Business Operations, Employment

On November 30, 2021, the U.S. District Court for the Eastern District of
Kentucky granted a preliminary injunction blocking the federal government from
moving forward with the COVID-19 protocols for federal contractors issued by the
Safer Federal Workforce Task Force (Task Force) and promulgated by President
Biden in Executive Order 14042. Under the guidance issued by the Task Force,
employees of covered federal contractors and those working “in connection with”
federal contracts must be fully vaccinated by January 18, 2022.

This case, brought by Kentucky, Ohio, and Tennessee, is one of many challenges
that have been brought against the vaccine mandate in federal courts around the
country. However, this decision prohibits enforcement of the vaccine mandate
only for covered federal contractors and subcontractors in covered contracts in
Kentucky, Ohio, and Tennessee. Continue Reading Vaccine Mandate for Federal
Contractors Blocked by Federal Court in Kentucky

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SIXTH CIRCUIT TO HEAR CHALLENGES TO OSHA’S NEW EMERGENCY TEMPORARY STANDARD

By Jill L. Ripke, Ben Prager & Christopher Wilkinson on November 17, 2021
Posted in Business Operations, Employment, Healthcare

On November 16, 2021, the U.S. Judicial Panel on Multidistrict Litigation
randomly assigned the U.S. Court of Appeals for the Sixth Circuit to hear legal
challenges to the vaccine emergency temporary standard (ETS) issued by the
Occupational Safety and Health Administration (OSHA). The ETS, affecting
employers with 100 or more employees, is summarized here.

The Sixth Circuit panel will now consolidate all existing petitions and rule on
challenges to the ETS. The court has not yet made any decisions or set any
briefing schedules. Five petitions have already been filed in the Sixth Circuit,
consolidated under the case Bentkey Services v. OSHA. It is likely that the
panel will ultimately review and address the stay issued by the Fifth Circuit,
described here. The Sixth Circuit has more judges appointed by Republican
presidents than Democratic presidents and is generally thought to lean
conservative although it is unknown what panel will hear the case. It is
possible that the challenges will eventually reach the U.S. Supreme Court.

OSHA has announced that it will not move forward with enforcement of the ETS
while these legal challenges are pending.

Employers should continue to monitor developments in this quickly changing legal
landscape and consult with experienced legal counsel regarding any questions
about the status and implementation of the ETS, including the applicability of
any state laws and regulations regarding vaccination.

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FIFTH CIRCUIT STAYS OSHA’S NEW EMERGENCY TEMPORARY STANDARD

By Jill L. Ripke, Christopher Wilkinson & Ben Prager on November 15, 2021
Posted in Business Operations, Employment, Healthcare, Labor Relations

On November 12, 2021, a panel of the Fifth Circuit Court of Appeals issued a
22-page order reaffirming the initial stay of a vaccine emergency temporary
standard (ETS) issued by the Occupational Safety and Health Administration
(OSHA). The ETS, affecting employers with 100 or more employees, is summarized
here. The three-judge panel determined that OSHA did not have legal authority to
issue the ETS. Among other concerns stated in the decision, the panel determined
that OSHA’s mandate did not meet the high bar to issue an emergency standard
because it had not sufficiently established a grave danger. Also, the panel
found that the ETS’s vaccine or testing requirements were overbroad (by setting
forth a standard requirement for workplaces regardless of the specific hazards
present in individual workplaces) and underinclusive (by exempting many
vulnerable workers in workplaces with fewer than 100 employees). Based on these
and other legal infirmities, the panel held that the challenges to the ETS were
likely to succeed on the merits, which supported the request for a stay. The
panel also stated that the ETS would remain stayed pending adequate judicial
review of the request for a permanent injunction and ordered OSHA to take no
steps to implement or enforce the ETS until further court order. Continue
Reading Fifth Circuit Stays OSHA’s New Emergency Temporary Standard

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MANDATORY VACCINE UPDATE FOR EMPLOYERS WITH 100 OR MORE EMPLOYEES

By Matthew Goldberg, Heather M. Sager & Christopher Wilkinson on November 7,
2021
Posted in Business Operations, Employment, Healthcare

On November 6, 2021, in a per curiam opinion, a Fifth Circuit Court of Appeal
panel temporarily enjoined the new Occupational Health and Safety
Administration’s vaccine Emergency Temporary  Standard (“ETS”) for employers
with 100 or more employees.  A copy of the opinion is available here.  Our prior
blog post on the ETS is available here.

The Fifth Circuit did not provide further analysis or comment, and did not
specify whether the injunction was meant to be nationwide in scope.  Notably,
this ruling does not mean employers cannot elect to voluntarily impose mandatory
vaccine policies, nor does the ruling mean that those policies are illegal.

The stay may be exceptionally short lived because next week one federal circuit
will be selected via lottery to handle the consolidated case on this issue (4
challenges have been filed thus far), and the selected circuit could reverse the
stay.  Challengers to the ETS have a 10-day window to file their petitions so
they can be included in the lottery, which will determine which circuit court
gets possession of the consolidated case.  Also, the Fifth Circuit in its
opinion ordered expedited additional briefing from the Biden Administration on
Monday and the petitioners on Tuesday, but it is unclear when or if the Fifth
Circuit will take additional action.  Employers should consult experienced legal
counsel for the most up-to-date advice on vaccine policies and the status of the
ETS.

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Clients rely on Perkins Coie for advice and guidance in the face of an
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and prepare.


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RECENT POSTS

 * CDC Shortens the Recommended Isolation and Quarantine Period
 * Sixth Circuit Grants the Biden Administration’s Motion to Dissolve the Stay
   of the OSHA Vaccine ETS
 * Cal/OSHA Revises COVID-19 Emergency Temporary Standards to Remove
   Distinctions for Vaccinated Workers
 * EEOC Updates Its COVID-19 Related Guidance
 * California Reinstitutes Mask Mandate


CORONAVIRUS (COVID-19): GUIDANCE FOR BUSINESSES

Helping Maintain Business Operations

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