The federal OSHA COVID-19 Emergency Temporary Standard (ETS) is currently paused while the Sixth Circuit decides its fate.  Similarly, Cal/OSHA had previously postponed its discussions of changes to the state’s COVID-19 ETS to see what would happen with OSHA.

However, time is starting to tick on the current Cal/OSHA ETS, which expires on January 14, 2022. As such, the readoption of the Cal/OSHA ETS is back on the agenda for the Standards Board meeting for December 16, 2021.

The Standards Board was previously scheduled to consider revision and readoption of the ETS in October and released the proposed changes at that time.

However, the proposal posted for the December meeting does include a few minor revisions to the definitions in the ETS including COVID-19 test and face coverings.

The definition of COVID-19 test under the requirements includes self-administered tests, but such tests must either be observed by the employer or an authorized telehealth proctor.

The definition of a face covering is also more detailed stating a face-covering includes:

  • surgical masks
  • medical procedure masks
  • respirators worn voluntarily
  • tightly woven fabric or non-woven material of at least two layers that completely covers the nose and mouth and is secured to the head with ties, ear loops, or elastic bands that go behind the heads.
  • gaiters that have two layers of fabric or are folded to make two layers.

Otherwise, the proposed changes to Cal/OSHA’s ETS are the same as proposed in October including revisions regarding exclusion from the worksite and return to work criteria.

If approved, the revisions to the ETS would go into effect on January 14, 2022, and remain in effect until April 14, 2022.

Jackson Lewis will continue to monitor changes in COVID-19 guidance and regulations in the workplace. If you have questions about the Cal/OSHA emergency temporary standards or related workplace safety issues, please reach out to the Jackson Lewis attorney with whom you often work or any member of our Workplace Safety and Health Team.

Thankfully, the Office of Management and Budget has quickly issued guidance on the impact of yesterday’s federal court ruling enjoining the Biden Administration’s federal contractor vaccine mandate.  The guidance, as reported on the Safer Federal Workforce Task Force website, states for existing contracts that include Executive Order 14042 implementing language:

The Government will take no action to enforce the clause implementing requirements of Executive Order 14042, absent further written notice from the agency, where the place of performance identified in the contract is in a U.S. state or outlying area subject to a court order prohibiting the application of requirements pursuant to the Executive Order . . .

The Task Force explains:

The Office of Management and Budget has issued guidance on implementing requirements of Executive Order 14042 while ensuring compliance with applicable court orders and injunctions, including those that are preliminary and may be supplemented, modified, or vacated, depending on the course of ongoing litigation.

Thus, it seems OMB has crafted this guidance to allow for potential changes in the applicability of the current injunction order and/or future litigation impacting the enforceability of the Executive Order.  Remember, in addition to this nationwide injunction, there still remains the three-state injunction issued prior to yesterday’s order in a separate litigation challenging the Executive Order.

It is important to keep in mind however, that ” federal agency COVID-19 workplace safety protocols for Federal buildings and Federally controlled facilities still apply in all locations. Contractor employees working onsite in those buildings and facilities must still follow Federal agency workplace safety protocols when working onsite.”

As always we will continue to monitor the situation as provide regular updates.

Most employees in San Francisco (and throughout California)  receive one hour of paid sick leave for every 30 hours worked.  The San Francisco Board of Supervisors is now considering an ordinance that would broaden the availability of paid sick leave to domestic workers by establishing a “portable” paid sick leave system.

The “Domestic Workers’ Equal Access to Paid Sick Leave Through a Portable System” ordinance would require any employer of domestic workers, including individual households, to provide their workers with paid time off through a portable benefits system.

Under the current version of the proposed ordinance, a domestic worker includes an individual who provides labor or services in a residence caring for a child; serving as a companion, or providing other non-medical care or services for a sick, convalescing, disabled, or senior person; cleaning, cooking, providing food or butler service, gardening, personal organizing, or performing other in-home personal or domestic service. A domestic worker also includes an individual who as part of their employment or contract resides in the personal residence of the hiring entity.

A “hiring entity” is defined as any person who directly or indirectly or through an agent or any other person, including through the services of a temporary service or staffing agency contracts with or hires a domestic worker.

Under the proposal, a hiring entity shall without regard to the employment classification of the domestic worker, provide paid sick leave funds. The domestic worker would then accrue a right to paid sick leave in a manner similar to other employees, i.e. not less than one hour of net pay, at the worker’s regular rate of pay, for every 30 hours of work for the hiring entities.

The right to paid sick leave would accrue in hour-unit increments, but the funds would not be transferred from the hiring entity to the domestic worker until the domestic worker requests the paid sick leave funds. The hiring entity would be responsible for any tax withholding or tax reporting obligations for the contribution at the time the paid sick leave funds are transferred. Hiring entities may not interfere with or deny the exercise of any right protected under this new ordinance, nor may they take any adverse action against any domestic worker who exercises their right protected under this new ordinance.

If passed, the San Francisco Office of Economic and Workforce Development would be tasked with developing and administering the portable paid sick leave system in an effort to minimize administrative burdens for the hiring entity and domestic worker. The system will track each covered worker’s hours worked for a hiring entity and net pay rates and calculate the accrued right to paid sick leave funds. The system will also coordinate the transfer of funds from one or more hiring entities from which the right to paid leave has accrued.

The ordinance would not be operative until sometime in 2022 if passed.

If you have questions about this proposed ordinance or issues related to paid sick leave requirements contact a Jackson Lewis attorney to discuss.

The U.S. District Court for the Western District of Louisiana has granted a preliminary injunction enjoining the Centers for Medicare and Medicaid (CMS) from enforcing its COVID-19 vaccine mandate nationwide. Read more.

A federal judge in the case of Commonwealth of Kentucky v. Biden has decided President Joe Biden likely overstepped his authority with Executive Order 14042 in requiring federal contractors to mandate COVID-19 vaccinations for their employees.  Adding additional complexity and confusion to the already muddied landscape, the decision enjoins the Order for going into effect in Kentucky, Ohio and Tennessee -the three states that challenged the Executive Order in the lawsuit.  Federal contractors and subcontractors subject to EO 14042 and the implementing FAR Clause are relieved, at least temporarily, from implementing the requirements for employees in the three named states.  This injunction throws a curve ball for Tennessee employers in particular.

Those employers with employees in Tennessee should be mindful of the Tennessee law that, among other things, prohibits private employers from requiring employees to show proof of COVID-19 vaccination or taking adverse action against an employee who does not show proof of vaccination if they object for any reason.  Under that law If an employer would lose federal funds, the employer can file a petition for relief from the state controller, but with EO 14042 enjoined this option will not be available.

The case is Commonwealth of Kentucky et al. v. Biden et al., case number 3:21-cv-00055, in the U.S. District Court for the Eastern District of Kentucky.

On November 19, 2021, the City of Philadelphia announced that all City workers must “complete a full schedule of COVID-19 vaccination(s)” by January 14, 2022, or risk losing their jobs. Read more.

Four separate groups of petitioners challenging the OSHA ETS, including a coalition of 27 states, have asked the court to hear the OSHA challenge en banc, arguing that the case involves a question of exceptional importance in that it is an “unprecedented mandate of COVID-19 vaccines based on a rarely used law of questionable applicability.” Bentkey Servs., LLC d/b/a The Daily Wire v. OSHA, U.S. Dep’t of Labor, Docket 21-4027, Docket Entry [32], p. 3 (6th Cir.).

Federal appellate cases are normally heard by a 3-judge panel selected at random.  Before appealing to the U.S. Supreme Court, the losing side may then petition for rehearing en banc, meaning that all of the active circuit judges would review the case and a majority of those could overturn or affirm the decision of the 3-judge panel.

Rule 35 of the Federal Rules of Appellate Procedure allows parties to request that the circuit bypass the normal 3-judge panel and have the case initially heard by all the active judges where the case “involves a question of exceptional importance.”  The petitioners argue that the OSHA ETS involves important constitutional questions about appropriate delegation of authority to OSHA, the Commerce Clause, and state versus federal powers under the 10th Amendment to the U.S. Constitution.  The answers to these questions will affect about 80 million people in this country and their right to make personal healthcare decisions.  Petitioners also argue that having the case heard en banc will promote judicial efficiency because the decision of the 3-judge panel would likely result in a request for a rehearing en banc anyway.  The OSHA ETS is hotly contested and politically charged, as evidenced by the various petitioners on both sides of the issue which have filed 34 petitions to review the ETS in 12 federal judicial circuits.

The government has until November 30, 2021 to file one consolidated response to all the petitions for the case to be heard en banc.

If you have questions about your compliance obligations under applicable federal or state laws, please reach out to a member of our Workplace Safety and Health Practice Group or COVID-19 Team.

The Administration has imposed new restrictions beginning November 29, 2021 at 12:01 a.m. ET on individuals travelling to the United States from Botswana, Eswatini, Lesotho, Malawai, Mozambique, Namibia, South Africa, and Zimbabwe (the “South African restrictions”) in response to the appearance of the COVID-19 Omicron variant. These restrictions go into effect just three weeks after the lifting of other geographic travel restrictions. Those on board a flight to the United States that departed prior to 12:01 a.m. ET will not be affected.

Like the prior geographic limitations, the South African restrictions apply to anyone who has been in one of the restricted countries anytime during the 14 days prior to travel. U.S citizens and permanent residents are not subject to this ban. Others who are exempted include: family members of U.S. citizens and permanent residents, crew members, diplomats, members of the U.S. armed forces, and those whose entry is in the national interest. National Interest Exceptions (NIEs) are expected to be in effect.

The U.S. Embassy in South Africa has announced that consulates in South Africa will continue to accept and process nonimmigrant visa applications while the restrictions are in place. This is a marked change from NIE processing previously, where consulates refused to accept nonimmigrant applications without an approved NIE waiver.

These new restrictions have been described as precautionary. The CDC will be introducing other measures. Those who are exempted from the ban must show proof of a negative COVID-19 test prior to travel. The “fully vaccinated” rules (and its exemptions) also will apply.

The restrictions will remain in effect until terminated by the President.

Jackson Lewis attorneys will provide updates as they become available.