Federal Court Allows OSHA Vaccine-Or-Test Rule To Move Forward

In a decision released late in the day on Friday, the United States Court of Appeals for the Sixth Circuit lifted a stay against the Occupational Safety and Health Administration’s (“OSHA”) rule requiring employers with 100+ employees either to require their employees to be vaccinated against COVID-19 or to submit to weekly COVID-19 testing and to wear facemasks in the workplace.  The Sixth Circuit’s ruling paves the way for OSHA’s rule, which was at a standstill due to an injunction issued by a different court, to go into effect.  Indeed, following the ruling, OSHA promptly announced that it expects employers to comply with the rule by January 10, 2022, but that it would not issue citations against non-complying employers until February 9, 2022. Employers that operate in states with their own occupational health and safety laws (including Alaska, California, Oregon, Utah, and Washington), will not be required to comply until the respective state agency formally adopts its version of the OSHA requirements.

The OSHA rule (29 C.F.R. 1910, subpart U), available here, generally requires employers with 100 or more employees to adopt one of two types of policies to combat the spread of COVID-19: either (1) a requirement that all employees be fully vaccinated, except to the extent that they are entitled to a reasonable accommodation on the basis of disability or religion; or (2) a requirement that employees who are not fully vaccinated against COVID-19 submit to weekly testing and wear masks in the workplace.  Among other requirements, the rule also requires employers to provide employees with up to four hours of paid time off for time spent receiving COVID-19 vaccinations, in addition to whatever paid time off employees already have available. To assist with implementation, OSHA has published a summary of the rule, a lengthy FAQ document, and template mandatory-vaccination and vaccination-or-testing policies.

Although the Sixth Circuit’s order provides some clarity about the way forward, there is still significant uncertainty about the rule’s status.  First, several organizations that challenged the rule in the lower court have already requested that the U.S. Supreme Court accept the case for review. If the Supreme Court accepts the case, it is possible (and perhaps even likely) that it will issue a stay against the rule going into effect while it considers the merits of the parties’ arguments.  Second, in states that have their own state-sponsored occupational health laws, the state occupational health agency must formally adopt a rule that is at least as protective as OSHA’s rule.  Although we expect that most states with their own approved plans will adopt some version of the vaccine-or-test mandate relatively soon, it is not clear when this will occur.  For states without a state occupational health law (including, for example, Idaho), OSHA’s January 10/February 9 timeline will apply unless the U.S Supreme Court says otherwise or OSHA chooses to extend the deadlines.

Please feel free to contact any of the attorneys in our Labor and Employment group with questions.

Utah Bill Challenges Federal Vaccine Mandate for Large Employers

In a special session this week, the Utah State Legislature passed a bill aimed at undermining the federal vaccine mandate for large employers.  Like previously existing law, SB 2004 mandates that any Utah employer requiring vaccination for COVID-19 must allow employees an exemption for medical or reasons or because of religious beliefs.  The Utah bill goes further, however, and requires an employee exemption for a “sincerely held personal belief.”

The formulation of these three exemptions tracks existing vaccination exemptions in public and higher education settings in Utah.  The bill prohibits employers from taking adverse action against any employee opting out of vaccine requirements for one of the three sanctioned reasons and requires employers to pay for mandated COVID-19 testing.  SB 2004 does not apply to federal contractors required to comply with federal vaccine mandates.

The status of vaccine mandates for Utah employers remains in flux.  If Governor Cox signs SB 2004, Utah employers would be required to honor employee requests to opt-out of vaccine requirements for one of the enumerated reasons.  If the federal vaccine mandate goes into effect, Utah employers should comply with the federal requirements, barring further legal action.

If you have questions about vaccine requirements in your workplace, contact your Stoel Rives Employment attorney.

The Latest on President Biden’s Vaccination Mandates

As we blogged about here, on September 9, 2021, President Biden announced sweeping new vaccine requirements that will impact millions of employees across the country, including:

  • A forthcoming rule that will require all business with 100 or more employees to require that employees be either fully vaccinated or tested for COVID-19 at least once a week.
  • A vaccination mandate for federal government employees (with no testing alternative, although religious and medical exemptions will be permitted).
  • A vaccine mandate for all federal contractors (with no testing alternative, although religious and medical exemptions will be permitted).

Here are the latest developments: Continue Reading

California Assembly Bill 51 Is Back!

Way back on October 10, 2019, California Governor Newsom signed Assembly Bill 51 (“AB 51”), which essentially made it unlawful for California employers to require workers or job applicants to execute arbitration agreements requiring them to waive their rights to sue in court for violations of the California Fair Employment and Housing Act or the California Labor Code.  Like many of the California legislature’s prior efforts to ban employment arbitration agreements, AB 51 was challenged prior to its effective date.  This challenge was brought in the United States District Court for the Eastern District of California and resulted in the Court granting a motion enjoining its enforcement.

On September 15, 2021, the Ninth Circuit Court of Appeals reversed the District Court’s Order enjoining AB 51’s enforcement.  While this ruling will almost certainly be appealed, at least for the time being the law is effective.  This means that California employers are currently technically prohibited from requiring applicants or employees to execute arbitration agreements as a condition of employment.  As such, California employers who intend to continue with those requirements should immediately consult with counsel to determine the benefits and risks of continuing down this (suddenly treacherous) path.

We will provide updates regarding AB 51 as further challenges to this law are all but guaranteed.

President Biden Announces New COVID-19 Vaccine Mandates

To address the on-going COVID-19 pandemic and the recent Delta variant surge, President Biden announced yesterday that he will implement sweeping new requirements to increase vaccination rates across the country.  Among the changes:

  1. OSHA is developing a new emergency rule directing all businesses with 100 or more employees to require their employees be (1) vaccinated or (2) tested for COVID-19 at least once a week. Additionally, those businesses will be required to provide paid time off for employees to get vaccinated or recover from vaccination-related side effects.  This requirement alone is estimated to impact over 80 million workers in the United States.  It will not go into effect until OSHA issues its rule.
  2. All federal government employees must be vaccinated (with no testing alternative). The White House has said this requirement will take effect in “about 75 days.”
  3. All employees of contractors that do business with the federal government must be vaccinated (with no testing alternative). This requirement will only apply to new contracts that are entered into on or after October 15, 2021, and contracts that are extended or renewed after that date (with limited exceptions for contracts that are “solicited” before the effective date and entered into afterward).  The “Safer Federal Workforce Task Force” has been ordered to issue further guidance on the specific requirements for contractors by September 24.  The requirement applies to a host of contracts or “contract-like instruments,” including those for services and construction.
  4. Employees at health care facilities that accept Medicare or Medicaid reimbursement must be vaccinated (with no testing alternative). This requirement will not go into effect until a rule is issued, likely in October.

Continue Reading

Oregon Health Authority Releases Mandatory Vaccine Rule and Religious/Medical Exemption Forms for Health Care Workers

Last week, Governor Kate Brown announced that the State of Oregon would require that all health care workers be fully vaccinated against COVID-19 unless they could prove they were entitled to a religious or medical exception.  The Oregon Health Authority (“OHA”) just released its administrative rule implementing the Governor’s announcement: effective October 18, 2021, health care workers and staff working in a health care setting must present documentation that they are fully vaccinated or that they are entitled to an exception.  Medical and religious exemptions must be documented on specific forms prescribed by the OHA, available here.  After that date, health care entities may not employ, contract with, or accept the volunteer services of an individual who cannot present such documentation.  Below is a summary of additional details about the rule’s requirements.

Broad Applicability.  The mandatory vaccine rule applies to all individuals, “paid or unpaid, working, learning, studying, assisting, observing or volunteering in a healthcare setting.”  “Healthcare setting” is broadly defined to include “any place where health care, including physical or behavioral health care is delivered.”  In addition to traditional medical facilities, the definition also includes providers of “alternative medicine such as acupuncture, homeopathy, [and] naturopathy” services.

Proof of Fully Vaccinated Status.  As with prior OHA and Oregon Occupational Health and Safety rules, “fully vaccinated” means that at least 14 days have passed since the individual received the second dose of a two-dose vaccine (Pfizer/Moderna) or the first dose of a single-dose vaccine (Johnson & Johnson).  Likewise, “proof of vaccination” means documentation issued by a government entity or health care provider that includes the worker’s name, date of birth, type of vaccine, date(s) the vaccine was given, and the name or location of the site where the vaccine was administered.  A COVID-19 vaccination card or digital photo or printout from the OHA’s immunization registry satisfies the rule’s requirements. Continue Reading

Washington to Reinstate Indoor Mask Mandate and Require Proof of Vaccination of Certain Workers

Mask Mandate

Effective August 23, 2021, masks will once again be required in indoor public spaces in Washington, regardless of vaccination status, for everyone over the age of five.  Masks will not be required for vaccinated employees in office spaces that are not public-facing, but are still required for unvaccinated employees in such offices.  Masks will also not be required for individuals working alone with no in-person interaction.

As a general matter, masks will not be required, but are strongly encouraged, in crowded outdoor settings.  However, unvaccinated employees are still required to wear masks when working outdoors with other people. Continue Reading

Oregon to Require Vaccinations for All Health Care Workers

On August 19, 2021, just two weeks after announcing that all Oregon health care workers must either be fully vaccinated or test weekly for COVID-19, which we blogged about here, Governor Brown announced that vaccinations will be mandatory for health care workers starting October 18, 2021, assuming the vaccines have full FDA approval by then.  There will not be a testing alternative.  Employers may, however, need to make accommodations for employees with disabilities or sincerely-held religious beliefs that prevent them from receiving the vaccine.

Prior to October 18 and full FDA approval, the Oregon Health Authority rules requiring health care workers to either show proof of vaccination or test weekly remain in effect.

If you have any questions about workplace vaccination policies or exemptions, please contact us.


State of Oregon and Multnomah County Publish Details of Indoor Mask Requirements

As we previously wrote about, the State of Oregon and Multnomah County are each imposing new indoor mask requirements beginning today, August 13, 2021, in response to the escalating COVID-19 pandemic driven by the Delta variant. Yesterday, the State and County released details of their respective requirements (the “Rules”), which overlap in most respects and are summarized together below.

The Rules mandate that all individuals age five and older must wear “face coverings” at all times when visiting “indoor spaces or enclosed areas” within a business.  (The State Rule also requires individuals age two and older to wear a face covering while using public transportation or inside transportation hubs.)  The exceptions are as follows:

  • When engaged in an activity that makes wearing a face covering impracticable, such as swimming, eating, drinking, or sleeping.
  • When engaged in an activity that only involves members of the same household. (County Rule only)
  • When removal is required for visual comparison, such as at a bank or if interacting with law enforcement.
  • When a person has a medical condition or disability and has appropriately requested an accommodation to enable full and equal access to services, transportation, or other facilities open to the public (note: the definition of “appropriately requested” is unclear). (County Rule only)
  • When receiving personal services or medical evaluations or treatment where a face covering is impractical, such as dental patients, beard services and cuts, facials, or nose/mouth waxing services.
  • When engaged in athletic or other physical activities for which use of a face
    covering is unsafe.
  • When at a private individual workspace, which is a space that is used by one
    individual at a time and is enclosed on all sides with floor-to-ceiling walls and a closed door.
  • When at or in a location where the employee, contractor, or volunteer does not have a job that requires interacting with the public or with other employees, such as a large warehouse and at least six feet of distance can be maintained between other people. (County Rule only)
  • When performing (such as playing music or giving a speech). (State Rule only)

Generally, “indoor spaces and enclosed areas” refers to any section of a business that is enclosed on three or more sides along with a roof.  The definition of “business,” while broad, does not include private homes under either Rule.  “Face coverings” are defined as cloth, paper, polypropylene, or medical-grade masks.  Notably, the County Rule does not on its face permit the use of face shields, while the State Rule does.

Business operators must ensure that employees, customers, and other visitors comply with face covering requirements under the Rules.  As with the prior Oregon Health Authority (“OHA”) and Oregon Occupational Safety and Health Administration (“OR-OSHA”)  rules, businesses must provide face coverings for their employees (although not for customers and other visitors).  In addition, businesses must post notices about the mask mandate.

Finally, the State and County Rules reiterate what is generally true under the law: that businesses must make reasonable accommodations for the face covering requirement under state and federal discrimination laws, most prominently the Americans with Disabilities Act and its state equivalent.  Both Rules provide for civil penalties in the event of a violation.

In addition to its Rule, the County also published a helpful FAQ, which is available here.

The new OHA rules do not address the OR OSHA rules’ ongoing requirement that employees, patients and visitors generally wear face coverings in health care settings where patient care is provided.  The OR OSHA rules in that setting remain in effect.

Employers with questions about how the State and County Rules affect their business should contact any of our Stoel Rives attorneys for assistance.


EUA Status Does Not Prohibit Employers from Requiring the COVID Vaccine; Seven Factors for Employers to Consider When Considering a Mandatory Vaccination Policy

While many employers initially were hesitant to institute mandatory COVID vaccinations, the recent surge driven by the Delta variant and announcements from large organizations—including the U.S. military, United Airlines, and major health care systems across the country—have caused many employers to revisit mandatory vaccination policies.

The Equal Employment Opportunity Commission and U.S. Department of Justice (DOJ) have made clear that, absent a contrary state or local law that prohibits mandatory vaccines (as we previously blogged about for Oregon’s restrictions for health care employers here, with accompanying regulations available here), employers may require employee vaccination as a condition of employment. This is true notwithstanding the current Emergency Use Authorization (EUA) status of the COVID vaccine, which may have led some employers to hesitate in issuing a vaccine mandate. In a recent written memorandum, the DOJ explained that the EUA status does not affect whether such a mandate is lawful:

Section 564(e)(1)(A)(ii)(III) of the Food, Drug, and Cosmetic Act concerns only the provision of information to potential vaccine recipients and does not prohibit public or private entities from imposing vaccination requirements for a vaccine that is subject to an emergency use authorization. Continue Reading