November 2021

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Supreme Court Blocks OSHA’s Vaccine Mandate ETS On November 5, the Occupational Safety and Health Administration (OSHA) published its emergency temporary standard (ETS) requiring certain employers to implement a mandatory COVID-19 vaccination policy or a weekly testing and mask policy. A complete copy of the ETS can be accessed here.   On November 6, one day after OSHA published the ETS in the Federal Register, the United States Court of Appeals for the Fifth Circuit issued an emergency stay of the ETS pending further legal briefing and action. Just days later, on Friday, November 12, the same federal Fifth Circuit Court of Appeals issued a ruling reaffirming its emergency temporary stay, calling the ETS “a one-size-fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces (and workers).”   On Friday evening, December 17, the Sixth Circuit Court of Appeals issued a ruling which gave life to OSHA’s ETS. That decision by the Sixth Circuit Court of Appeals was immediately appealed to the United States Supreme Court. On an expedited basis, the Supreme Court heard oral arguments from both sides, with those arguments heard on January 7. Yesterday, the Supreme Court issued its decision, which reinstates the stay, therefore temporarily barring OSHA’s enforcement of the ETS. The stay will be in place pending the final disposition of the case by the Sixth Circuit Court of Appeals and disposition of any further appeal of the Sixth Circuit’s forthcoming decision to the Supreme Court.   The Supreme Court, although divided in its ruling, determined that the businesses and nonprofit organizations who challenged the ETS would likely prevail on the merits, and, therefore, reinstituted the stay issued by the Fifth Circuit Court of Appeals. In support of its decision, the conservative majority of the Supreme Court determined that, while OSHA has the power to set workplace safety standards, it does not have the power to set broad public health measures. The majority confirmed that point by noting that the OSHA provisions typically speak to hazards that employees face at work, and no provision of the law addresses public health more generally, which the majority determined falls outside of OSHA’s sphere of expertise. The failure of the ETS to distinguish between occupational risk and risk more generally led the majority to conclude that the ETS takes on the character of a general public health measure, rather than an occupational safety or health standard. On this basis, it reinstituted the stay.   Notably, the government did not dispute that OSHA is limited to regulating work-related dangers. Instead, the government argued that the risk of contracting COVID-19 qualifies as such a danger. The Court’s conservative majority disagreed, stating that although COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most.    We will continue to keep you informed as this case works its way back to the Sixth Circuit Court of Appeals. Simultaneously, OSHA is working on a permanent standard, which is due May 5, when the ETS expires.

New CDC Quarantine and Isolation Guidance   On January 9, 2022, the Center for Disease Control and Prevention (CDC) updated its COVID-19 quarantine and isolation guidance and recommendations for the general population. The updated COVID-19 guidance now reflects shorter isolation and quarantine periods of 5 days to focus on the period when a person is most infectious. The CDC stated that due to the Omicron variant spreading rapidly throughout the United States, “the potential for a large number of cases raises serious concerns about societal impact due to illness” and the “accumulating evidence demonstrates the majority of transmission occurs during the early period of infection.” The CDC went on state that the new guidance and recommendations “reflect the societal impact (e.g., critical infrastructure and staffing shortages) and the latest science on disease severity and when and for how long a person is maximally infectious.” Exposure to COVID-19 For exposure to COVID-19, the CDC has different recommendations for individuals who are up-to-date on COVID-19 vaccinations. If you were exposed to COVID-19 and NOT up-to-date on COVID-19 vaccinations, the CDC recommends that you stay home and quarantine for at least 5 full days. If you were exposed to COVID-19 and ARE up-to-date on COVID-19 vaccinations, the CDC recommends that you do not need to stay home and quarantine unless you develop symptoms. Regardless of vaccination status, the CDC recommends that you get tested, wear a mask, and watch for symptoms for 10 days after you last had contact with someone who tested positive for COVID-19. Positive Test for COVID-19 For a positive test for COVID-19, regardless of vaccination status, the CDC recommends that you stay home and isolate from others in your home for at least 5 days and to wear a mask if you must be around others in your home. The guidance states that if you had symptoms, you can end isolation after 5 full days if you are fever-free for 24 hours and your symptoms are improving. If you did not have symptoms, you can end isolation after at least 5 full days after your positive test. If you are severely ill with COVID-19, the guidance states that you should isolate for at least 10 days and consult your doctor before ending isolation. For the most up to date CDC guidance on isolation and quarantine, visit the CDC website by clicking here. If you have any questions regarding CDC quarantine requirements or general COVID-19 related employment questions, please call or email either Philip Siegel or Ben Lowenthal. You can e-mail Philip and Ben by clicking here. Philip can be reached directly at (404) 469-9197, and Ben can be reached directly at (404) 469-9177.

EEOC Clarifies When COVID-19 May Be a Disability   On December 14, 2021, EEOC updated its COVID-19 technical assistance to add a new section intending to clarify when COVID-19 may be a considered a disability under the Americans With Disabilities Act (“ADA”). The new rules appear in a question and answer format as new Section N within EEOC’s technical assistance. The entire technical assistance can be found here, in Section N.   In announcing the new guidance, EEOC Chair Charlotte A. Burrows noted: “Like effects from other diseases, effects from COVID-19 can lead to a disability protected under the laws EEOC enforces. Workers with disabilities stemming from COVID-19 are protected from employment discrimination and may be eligible for reasonable accommodations.”   Under the new guidance, a person with COVID-19 has an actual disability if the person’s medical condition or any symptoms results in a “physical or mental” impairment that “substantially limits one or more major life activities.”  The determination of whether the effects of an individual’s COVID-19 substantially limit a major life activity is made on an individualized assessment basis. The guidance provides several examples related to these factors. Note, however, that COVID-19 is not always an actual disability under the ADA.   In particular, someone who is infected with the virus but is asymptomatic or has mild symptoms that resolve in a matter of weeks, with no other consequences, will not be substantially limited in a major life activity for purposes of the ADA. However, in cases where symptoms occur intermittently, they will be deemed to substantially limit a major life activity if they are substantially limiting when active, based on an individualized assessment.   An employee who establishes an actual disability from COVID-19 is not necessarily entitled to a reasonable accommodation, unless the disability requires it. The accommodation is also only required when it is not an undue hardship on the employer. The employer may request supporting medical documentation from an employee requesting a reasonable accommodation. Note also that employers may also provide reasonable accommodations to employees even when not required to.   Further Questions? If you are facing an issue involving an employee who has been infected by COVID-19 that might have ADA implications or if you have any other questions about this article, please contact Philip Siegel or Scott Calhoun. You can e-mail them both by clicking here.

The EEOC Updates its COVID-19 Information to Address Retaliation On November 17, 2021, the U.S. Equal Employment Opportunity Commission (“EEOC”) updated its Coronavirus and COVID-19 resources web page to include information about employer retaliation. The updated information presented by the EEOC attempts to provide assistance in explaining the balance between the rights of employees and employers’ needs to enforce COVID-19 health and safety protocols. In the update, the EEOC confirms that job applicants and current and former employees are protected from retaliation for exercising equal employment opportunity rights in connection with COVID-19. The EEOC then goes on to list employee activities that are protected from employer retaliation and examples of how those activities could arise in the context of COVID-19. The EEOC identifies the following protected employee activities:  Filing a charge, complaint, or lawsuit, regardless of whether the underlying discrimination allegation is successful or timely. Reporting alleged EEO violations to a supervisor or answering questions during an employer investigation of the alleged harassment. Resisting harassment, intervening to protect coworkers from harassment, or refusing to follow orders that would result in discrimination. Requesting accommodation of a disability (potentially including a pregnancy-related medical condition) or a religious belief, practice, or observance regardless of whether the request is granted or denied. As an example of protected activity in relation to COVID-19, the EEOC theorizes that an employee may request continued telework after a workplace as an accommodation for disability. In relation to requesting an accommodation for a religious belief, the EEOC uses the example of an employee requesting modified protective gear that can be worn with protective garb. The EEOC notes that making such a request is a protected activity, even if the individual is not legally entitled to the requested accommodation. The updated information makes clear that an employee’s protection against retaliation and the prohibition of an employer’s interference with an employee’s exercise of rights applies even in situations that may be unique to COVID-19. The EEOC’s resources page presents a relatively comprehensive guide titled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws”, which can be accessed here, and it provides guidance and analysis in relation to COVID-19.