Employers await word from SCOTUS re OSHA rule mandating vaccine for large employers

With OSHA having said it will wait at least until January 10, 2022 to enforce its rule implementing President Biden’s vaccine mandate for large employers and even then that it will do so with consideration for confusion surrounding the rule’s status and wait another month before enforcing the vaccine-or-test mandate, the Supreme Court is now poised to rule on the constitutionality of that and other of President Biden’s mandates. It has been reported that in total some 27 states have already signed on to various of the challenges, not to mention multiple amici such as business and religious organizations. The Supreme Court just ordered briefing in response to the requests for stay is due no later than December 30, 2021, and that the stay requests will be heard for oral argument on January 7, 2021. This may portend a Supreme Court ruling between close of oral arguments January 7, 2021, and before OSHA’s intended enforcement start-up January 10, 2021.

Having said that, the challengers have also asked for stays from the Sixth Circuit itself and administrative stays from the Supreme Court (a different procedural form of stay than that which will be heard January 7), so it is possible that stays could come from either source sooner, especially so that issues are frozen and preserved for proper consideration by the Supreme Court.

When the Supreme Court rules on stays, will it also resolve the mandates’/OSHA rule’s constitutionality and legal enforceability? At this point, underlying litigation of the mandates is in its infancy across the country. None of the substantive issues in those cases have yet reached the Supreme Court. However, various of the challengers are asking the Court to, not just freeze the mandates but also to, bypass normal judicial procedures and immediately take their cases on appeal (accept certiorari).

CDC updates isolation guidelines

The CDC has updated its isolation guidelines with a shorter 5-day instead of 10-day period for people who (1) are fully vaccinated, (2) have been exposed and (3) have a positive COVID-19 test result (4) but no symptoms. Unfortunately the CDC’s website has now become splintered with various guidances in various places that haven’t yet been updated consistently, nor has the latest CDC guidance yet been promulgated into other agency guidances, including OSHA’s COVID-19 site. For now, the CDC’s new 5-day guidance is available here, as well as a flow-chart in which the CDC explains isolation protocols, including minimum days, for various people depending on status of vaccination, exposure, test result and symptoms.

3-judge panel of Sixth Circuit lifts freeze on OSHA vaccine mandate for large companies

A 3-judge panel of the Sixth Circuit has lifted the freeze on OSHA’s large company vaccine mandate (50 employees or more). The 3-judge panel decision was fully fractured, in that one judge wrote an opinion, in which a second concurred, making it technically the majority opinion; the third judge in the panel then wrote a scorching dissent that argued for the freeze’s immediate reinstatement. The dissent concluded with a call for individuals to act — by becoming vaccinated — not OSHA.

(OSHA) cannot even regulate for the sake of the vaccinated; they are not in “grave danger.” Instead, the mandate is aimed directly at protecting the unvaccinated from their own choices. Vaccines are freely available, and unvaccinated people may choose to protect themselves at any time. And because the Secretary likely lacks congressional authority to force them to protect themselves, the remaining stay factors cannot tip the balance.

The decision is now likely to face both a request for reconsideration by the entire bench of judges who constitute Sixth Circuit — of whom a majority are Republican appointees — and then a request for immediate review by the Supreme Court — where again it will face a majority of Republican appointees. Indeed challengers in the litigation have already filed motions with the Supreme Court requesting the immediate reinstatement of the freeze.

Recognizing that there isn’t now sufficient time for large companies to implement the mandate by the original deadlines  and possibly even recognizing that its own rule is not likely to withstand the next two tiers of review, or is at least likely to face another freeze sooner than later, OSHA has announced it will delay enforcement of its own rules by approximately one month.

To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, OSHA 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. OSHA will work closely with the regulated community to provide compliance assistance.

Employers should certainly continue to consider how they can implement the mandate if required but remember that at least some states have already passed laws that make voluntary implementation challenging if not violations of those states’ laws. Given the nature of both the full bench of the Sixth Circuit and the Supreme Court justices, it is not at all unlikely this — unfortunately — now extremely political issue will trigger another freeze of OSHA’s rule in the coming weeks.

EEOC cautions some cases of COVID-19 may cause a disability protected by law

While most cases of COVID-19 resolve without complication, the EEOC cautions in a new Section “N” added to its on-going COVID-19 guidance, that some cases may be more severe and cause a “disability” that is protected by the ADA (Americans with Disabilities Act).

The EEOC advises that anyone who experiences only no symptoms or mild symptoms, including symptoms comparable to a cold or flu, will not be considered “disabled.” Rather that person will have suffered a “transitory and minor” illness that is not a “disability.”

However, a person may experience a protected “disability” if they suffer “ongoing but intermittent” symptoms that “substantially limit” major life activities like “neurological and brain function, concentrating, and/or thinking,” or if they receive supplemental oxygen for breathing difficulties, or if they suffer “heart palpitations, chest pain, shortness of breath, and related effects to to the virus that last, or are expected to last, for several months and that “substantially limit” major life activities such as “cardiovascular function and circulatory function.” Likewise “intestinal pain, vomiting, and nausea” that lasts “for many months, even if intermittently” may constitute a “disability” if it substantially limits major life activities. (See. Section N.4). The EEOC explains its guidance is intended to confirm that at least some cases of so-called “long COVID” (more commonly called long-haul COVID) can constitute a “disability.”  Likewise even if the person does not experience long-haul COVID, they may nonetheless suffer a protected “disability” if the COVID-19 triggers a different condition (such as diabetes) that is itself a protected disability.

The EEOC cautions that employees may also be protected if “regarded as” so disabled even if they do not have an actual disability of this type, for example, if their employer fires them because it believes their symptoms will continue along such lines. See Section N. 7.  And the EEOC cautions they may also be protected if the company has a “record of” them having such a condition even if they do not actually have such a condition and are not “regard as” having such a condition.

President Biden’s government-contractor vaccine mandate blocked by nationwide freeze

Following on the heels of a recent ruling that froze President Biden’s government-contractor vaccine mandate in just a few states, the District Court for the Southern District of Georgia has issued a nationwide freeze against that mandate. The mandate would have imposed vaccination requirements on certain federal government contractors and their employees.

This nationwide freeze mirrors another blocking the OSHA rule that would have implemented President Biden’s vaccine mandate for large employers.

Employers are reminded that either or both freezes are part of on-going litigation and could be lifted at any time.