COVID-19 Update January 14, 2022

Supreme Court blocks Biden Administration’s Vaccination or Test Requirement for Businesses, Allows Rule for Healthcare Workers

On December 27, OSHA announced it is going to withdraw portions of its Emergency Temporary Standard (ETS) for healthcare and healthcare support workers. OSHA will continue to work on a permanent standard for COVID-related hazards, noting that preventative measures to support and protect healthcare workers is of utmost concern. OSHA formally withdrew the non-recordkeeping portions of the ETS. However, the recordkeeping requirements for employers covered under a separate rule will remain in effect. This portion of the ETS will require employers to maintain logs of all employee COVID cases, regardless of whether they are considered work-related. In addition, healthcare facilities must continue to affirmatively report COVID work-related inpatient hospitalizations within 24 hours and fatalities within 8 hours.

OSHA continued to remind healthcare facilities of their obligation to protect employees in the workplace under the general duty clause. Furthermore, that “continued adherence” to the terms of the ETS would be the simplest way to comply with this obligation. Although the provisions of the Healthcare ETS no longer have the force of law, best practices would suggest employers continue to implement their COVID-19 plan and other requirements set forth in the Healthcare ETS.

The FAQ’s for OSHA’s general duty COVID ETS specifically states that if the Healthcare ETS is no longer in effect while the general industry ETS is in effect, some employees working in those healthcare settings may become covered by the general duty ETS. As a reminder, the June 2021 vaccination or test mandate covers employers with at least 100 employees. The Supreme Court heard oral arguments regarding the ETS during a special Court session on January 7. The Supreme Court’s decision came in Thursday afternoon, blocking the Biden administration from enforcing the vaccination-or-test requirements for large private companies. However, the Court’s decision allows for similar requirements to remain in effect at facilities that take Medicare or Medicaid payments.

Cal/OSHA recently allowed a case to move forward for an employee who contracted COVID at work. This individual subsequently exposed her family, where her father later passed away resulting from COVID-19. Cal/OSHA is allowing the suit to move forward, showing that the business has liability in where their employee(s) contract COVID. The outcome of this case has yet to be decided in Court, but is a cautionary sign for businesses of their potential liability.

On a separate but COVID-related note, we strongly encourage you to connect with your out-of-state remote employees and become familiar with the laws of the state where they reside. Remote employees operating in a different state from their employer, could result in the employer being subject to the employee’s residence state sales and/or income tax.

Hope everyone had a great holiday season!

Dave and Teresa

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