OSHA has just announced that it is withdrawing this ETS effective immediately. Although OSHA is withdrawing the ETS as an enforceable emergency temporary standard, OSHA is not withdrawing the ETS to the extent that it serves as a “proposed” rule; instead OSHA has indicated that it will prioritize its resources to focus on a permanent COVID-19 Healthcare Standard. Notwithstanding the withdrawal of the ETS for large employers, OSHA continues to strongly encourage the vaccination of workers against the continuing dangers posed by COVID-19 in the workplace.

On January 13, 2022, the United States Supreme Court issued a “stay” that prevents OSHA’s Emergency Temporary Standard (“ETS”) from taking effect for the time being. On the same day, the Supreme Court also issued a “stay” that allows the Health and Human Services (“HHS”) mandatory COVID-19 vaccination rule for all Medicare and Medicaid funded facilities to go into effect. Given that both of these rulings involved applications for preliminary or emergency relief, neither of them represents the final word on the enforceability of the vaccine and/or testing mandates, and additional litigation is a certainty as the lower courts further evaluate the legality of the mandates.

On December 17, 2021, the United States Court of Appeals for the Sixth Circuit lifted a stay on enforcement of the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS), which was issued on November 4, 2021.

In October, the U.S. Equal Employment Opportunity Commission (EEOC) updated its COVID-19 Technical Assistance, providing additional guidance for employers on the interaction between COVID-19 vaccine workplace policies and federal equal employment opportunity (EEO) laws. Here are key updates to the Technical Assistance:

OSHA issued its much-anticipated Emergency Temporary Standard (ETS) late last week on Thursday, November 4, 2021. In general, the ETS requires employers to establish, implement, and enforce a mandatory COVID-19 vaccination policy. The ETS provides a limited exemption from the vaccine mandate which permits an employer to establish a policy which allows employees to choose either vaccination or regular weekly COVID-19 testing and wear a face covering in the workplace as an alternative to vaccination.

The Department of Health and Human Services’ (HHS) Office for Civil Rights (OCR) recently published a new guidance on disclosures and requests for information regarding a person’s receipt of the COVID-19 vaccination in relation to the Health Insurance Portability and Accountability Act (more commonly known as HIPAA). As employers continue to develop COVID-19 vaccination policies in the workplace, this guidance may be important.

On September 29, 2021, the day before it was set to expire, the Massachusetts legislature amended the COVID-19 Emergency Paid Sick Leave Act (MA EPSL), extending it until April 1, 2022 or the exhaustion of $75 million in program funds, whichever is earlier. Additionally, the amended MA EPSL expanded the reasons for which employees can use sick leave to include “to care for a family member who needs to obtain or recover from a COVID-19 immunization.”

In recent weeks, a growing conversation has unfolded about COVID-19 vaccine mandates in the workplace. This conversation was further thrust into the spotlight last night, on September 9, 2021, when President Biden outlined a far-reaching COVID-19 Action Plan, which particularly seeks vast vaccine mandates in the workplace.

For employers, implementing a vaccine policy can be intimidating given the variety of state and federal regulators who have issued guidance on the subject. Additionally, a COVID-19 vaccine mandate may carry an extra threat of workplace polarization of which many employers are understandably wary. The purpose of this Client Alert is to summarily outline a toolkit of federal guidance, including President Biden’s COVID-19 Action Plan, that an employer may consult, in part, when considering whether to implement a COVID-19 vaccine program in their workplace. Please note, all numbered headings below are hyperlinked.