On January 13, 2022, the Supreme Court of the United States issued two decisions addressing the Occupational Safety and Health Administration’s (OSHA) Vaccination and Testing Emergency Temporary Standard (ETS) and the Center for Medicare & Medicaid Services (CMS) vaccination mandate.

The Supreme Court put the OSHA ETS on hold, finding the ETS was more akin to a general public health measure rather than an “occupational safety or health standard.” The stay will remain in place pending a review of
Continue Reading Supreme Court Stays OSHA ETS, Upholds CMS Vaccination Mandate

As you know, in early November, OSHA announced an emergency temporary standard (“ETS”) which affects employers with 100 or more employees. The ETS directs these covered employers to develop, implement, and enforce a written mandatory COVID-19 vaccination policy—or to adopt a written policy requiring employees to either choose to be vaccinated or to be tested regularly and wear a face covering at work.

The ETS was immediately challenged, and within a few days, the ETS was halted nation-wide by
Continue Reading OSHA’s Vaccine or Test Rule Remains in Limbo Following Arguments before the U.S. Supreme Court

On December 27, 2021, the Occupational Safety and Health Administration (OSHA) announced it is withdrawing the non-recordkeeping portion of the Emergency Temporary Standard for healthcare employers (Healthcare ETS). However, the requirements outlined under the Healthcare ETS will now serve as guidelines for compliance with the general duty clause of the Occupational Safety and Health Act (OSH Act).

Issued on June 21, 2021, the Healthcare ETS outlined rigorous safety standards (previously discussed here) intended to protect workers from the
Continue Reading OSHA Retracts Portion of COVID-19 Emergency Temporary Standard for Healthcare Employers

On Monday, December 27, 2021, the Centers for Disease Control and Prevention (CDC) shortened the recommended isolation and quarantine period for certain individuals infected with or exposed to COVID-19. The new recommendations come in light of evidence that the majority of SARS-CoV-2 transmissions occur in the 1-2 days prior to onset of symptoms and the 2-3 days after. The CDC’s new recommendations, outlined below, will be a welcome change for many employers struggling with staffing shortages as it will
Continue Reading CDC Shortens Recommended Isolation and Quarantine Periods

The Supreme Court has announced that it will hear oral arguments on both the OSHA ETS vaccine mandate and the CMS vaccine mandate on January 7, 2022.

On December 17, 2021, we shared with you that the Fifth Circuit limited the scope of the injunction related to the CMS Mandate, which meant that 26 states were required to comply with the mandate again. (Click here to read more). On December 18, 2021, we shared with you that the Sixth
Continue Reading Supreme Court Accepts Vaccine Mandate Cases

On Wednesday, the U.S. Supreme Court issued an order (found here) that it would hold a special session to hear arguments on OSHA’s vaccine-or-test rule that mandates employers with 100 or more employees require its employees to be fully vaccinated against the COVID-19 virus or be subject to weekly tests. The Court issued its order in response to emergency applications for an administrative stay in response to the U.S. Court of Appeals for the Sixth Circuit’s 2-1 decision
Continue Reading U.S. Supreme Court to Hold Special Session on January 7, 2022 to Review Federal Vaccine Mandates

On Friday, December 17, 2021, a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit lifted the stay of OSHA’s emergency temporary standard (ETS) mandating COVID-19 vaccinations in the workplace or, alternatively, requiring unvaccinated employees to submit to weekly COVID-19 tests. The stay was originally issued by the U.S. Court of Appeals for the Fifth Circuit on November 5, 2021, when the Fifth Circuit held that OSHA had exceeded its statutory and constitutional authorities when it
Continue Reading Sixth Circuit Lifts Stay of OSHA’s Vaccination Mandate–OSHA Follows by Announcing Enforcement Policy

This week I was talking to Bob, a local HR professional (you know who you are), and he asked, “So Sara, what are the chances we are going to get a ruling on this OSHA mandate before the holidays?” to which I replied, “Highly unlikely…I would be shocked if anything happens before the holidays—but I am sure if it is reinstated, OSHA will give employers a break on compliance.”  Well, I was half-right.

Last night, the Sixth Circuit reinstated
Continue Reading OSHA Mandate Back On – Shot or Test by February 9th!

On December 2, President Biden announced a nine-point action plan to combat COVID-19 as the United States heads into the winter months and with the emergence of a new variant, Omicron.  One of the actions announced calls for the Departments of Health and Human Services, Labor and the Treasury to issue guidance by January 15, 2022 to clarify that individuals who purchase over-the-counter COVID-19 at-home diagnostic tests may seek reimbursement from their group health plan or health insurance issuer
Continue Reading At-Home COVID-19 Tests Soon to be Covered by Employer Health Plans

On December 14, 2021, the Equal Employment Opportunity Commission (EEOC) published additional guidance addressing when an individual infected with COVID-19 may qualify as disabled under the Americans with Disabilities Act (ADA). The publication expands on the EEOC’s September 2021 guidance regarding whether “long-haul” COVID-19 is a disability under the ADA.

Title I of the ADA prohibits discrimination on the basis of disability in the workplace. An employee may be disabled, for purposes of the ADA, in one of three
Continue Reading EEOC Provides Additional Guidance on When COVID-19 May Qualify as a Disability

On Tuesday, December 7, a federal court in Georgia issued an order staying the vaccine mandate for federal contractors (“Mandate”). The Court ordered that the Defendants, which includes President Biden,

are ENJOINED, during the pendency of this action or until further order of this Court, from enforcing the vaccine mandate for federal contractors and subcontractors in all covered contracts in any state or territory of the United States of America.

Click here to read full order. This order follows
Continue Reading Nationwide Halt to Vaccine Mandate for Federal Contractors

Despite previously saying it had no plans to renew the mask mandate after a previous iteration expired on November 27, Public Health of Madison and Dane County (“PHMDC”) has issued a new mask mandate to run until January 3.
Is This Order the Same as the Previous Iterations?
Largely, yes. The current order substantially mirrors the language in the PHMDC mask mandates since September. For a refresher, you can read our KEW Tip on the previous order here. The
Continue Reading PHMDC Renews County-Wide Mask Mandate

A couple of weeks ago we alerted you regarding the Centers for Medicare and Medicaid Services (CMS) COVID-19 vaccination mandates. Reports have emerged today that an injunction has been placed upon this CMS requirement nationwide which takes place immediately.

This is the second Federal Court injunction that has been issued enjoining immediate enforcement of the CMS vaccination mandates.  A federal court in the Eastern District of Missouri had previously issued a decision blocking immediate enforcement. However, the Missouri decision
Continue Reading Federal Court Issues Nationwide Injunction Against Enforcement of the CMS Vaccination Mandate

On November 30, 2021, a federal district court in Louisiana issued an order that blocks the U.S. Department of Health and Human Services and the Center for Medicare and Medicaid Services from implementing the CMS Vaccination Rule that requires covered facilities to implement and enforce mandatory vaccination policies as a part of President Biden’s COVID-19 action plan. The order applies nationwide, except for states that had already been granted a similar order in a pending case in Missouri. It
Continue Reading Preliminary Injunction Enjoins CMS Vaccine Mandate

This past year has opened our eyes to new challenges and questions that need to be addressed in the workplace.

As a result of the COVID-19 virus, many businesses and industries attempted to stem the growing infection rate by working allowing employees to work remotely, initiate safety protocols, or close their doors temporarily. But now, as vaccines are readily available to the public, businesses are attempting to make a return back to normalcy, or as close as possible to
Continue Reading Preparing Your Workplace for Mandatory COVID-19 Vaccine and Testing Requirements

On November 23, 2021, the Wisconsin Department of Health Services (DHS) conducted a live webinar to answer questions surrounding the Centers for Medicare & Medicaid Services (CMS) COVID-19 Vaccine Mandate scheduled to take effect December 6, 2021.

The most frequently asked question among providers was, “Does the vaccine mandate apply to our facility?” The response by DHS was consistent that if your facility or provider type bills Medicare via a CMS Certification Number, the CMS vaccination mandate applies to
Continue Reading Wisconsin DHS Answers Questions About the CMS Vaccination Mandate