Being sick over the last week brought me a lot of unexpected “gifts”. Sure, there were the forced afternoon naps (oh, who’s kidding, even a morning nap too) . The watching of “The Price is Right” at least once (or was it twice?). The early start of a post-pandemic diet.
But also the “gift” of not having to be first to write about the new OSHA Emergency Temporary Standard that employment lawyers had been breathlessly awaiting.
I’m not going to lie; I had wanted to be one of the first. But after several straight days of fighting a stomach bug (which, while grateful it wasn’t COVID, was hardly the “prize” I’d wish on anyone), I just had to resign myself to the fact that others were going to get out first ahead with the news. The story would just have to wait until I could feel better.
This is one of those times when I feel like that forced delay was a gift because it allowed a bigger picture to emerge from the last few days. Let me unwrap this.
First, as you know, on Thursday, OSHA released its new rule that pretty much did what had been telegraphed for weeks — impose a mandate or test requirement on employers with 100 or more employees. My colleagues at Shipman & Goodwin wrote an excellent, easy-to-understand summary here. (I’m so thankful to colleagues who had my back during my unexpected absence as I had volunteered to take the lead on this when it came out.) Go read it; I’ll wait.
Second, it turned out that the OSHA ETS was only part of the story and that a little patience was important to piece together the rest of the information. Importantly, there was news that the Centers for Medicare & Medicaid Services (“CMS”) issued a final rule on November 5, 2021, with the requirement that Medicare and Medicaid-certified suppliers, providers, and their staff become vaccinated for COVID-19. (No testing for these workers permitted.) Once again, my colleagues did a recap of THAT rule here too.
Third, also announced after the OSHA ETS was news that the federal contractor vaccine mandate — originally set for December 8th — was also getting pushed back to January 4, 2022. (Again, no testing opt-out permitted.)
And finally, over the weekend, came word that the Fifth Circuit Court of Appeals issued a fairly extraordinary stay of the OSHA ETS citing unspecified ” grave statutory and constitutional issues”. It issued the parties to submit briefs over the next few days. The stay order is only temporary but this won’t be the last time the validity of the OSHA ETS will be called into question.
That doesn’t mean that employers should ignore the OSHA ETS; preparations should continue. But it does mean employers should understand that the final “word” on this has yet to be written.
While having lots of my time on my hands to ponder my living room ceiling (never have I hated the “popcorn” style we have as this week), I also came around to seeing the bigger picture: Regardless of whether the OSHA ETS ever gets upheld, the Biden Administration is accomplishing it’s overall goal — more vaccinations. Companies have already begun to implement mandatory vaccination policies nationwide; those won’t be reversed. And obviously, once people are vaccinated, the country and many workplaces becomes safer with the virus having less of an opportunity to spread. People obviously can’t be unvaccinated even if the rule is later modified.
The fact remains that mandatory vaccination policies for employers have been nearly universally upheld and fairly successful. The OSHA ETS tries to get many more employers on board and gives them cover to do so.
Will this end to the pandemic? I don’t know. But anything that can speed up getting to the end in a safe faction is something that I know I’m a fan of.
Being sick is no fun for anyone — it’s disruptive to the workplace, families and workers. Let’s see where we are in a few months once the rules continue to evolve.
In the meantime, it’s time to get to work employers. The clock is ticking on compliance.