LINDNER & MARSACK, S.C., WELCOMES JUSTIN SCHUESSLER AND ALEXANDRA CHEPOV TO GROWING TEAM OF LABOR & EMPLOYMENT ATTORNEYS

Lindner & Marsack, S.C., announced today that Alexandra (Sasha) Chepov and Justin Schuessler have joined the firm. Both attorneys will practice out of Lindner & Marsack’s Milwaukee headquarters.

A recent graduate of Marquette University Law School, Chepov has been serving as a law clerk with Lindner & Marsack since January. As an Associate Attorney, her practice is dedicated to providing employers with legal advice and rigorous representation in labor and employment litigation matters including wage and hour (FLSA), employment discrimination, harassment and retaliation (Title VII, ADA, ADEA), immigration, family and medical leave (FMLA), restrictive covenant agreements (non-competition, non-solicitation, confidentiality), severance agreements and general labor relations. In addition, coming from a family of business owners, Chepov brings a unique perspective and experience to guiding employers of all sizes in customizing employment practices and policies that best promote their unique business interests and objectives to maintain proper practices and avoid litigation.

While in law school, Ms. Chepov served as the President of the Moot Court Executive Board, participated in the Honor’s Moot Court Competition, and competed in the national labor and employment moot court competition.

As an Associate Attorney, Schuessler’s practice focuses on defending worker’s compensation claims throughout the State of Wisconsin. His previous experience handling in-house worker’s compensation matters for a multi-billion-dollar corporation doing business across North America cultivated a comprehensive understanding of the worker’s compensation frameworks of various jurisdictions across the United States. Prior that that experience, Mr. Schuessler defended corporations and their carriers in a similar role at Kasdorf, Lewis, & Swietlik.

Schuessler received his law degree from Marquette University Law School in 2012 and his Bachelors of Arts from the University of Wisconsin-Milwaukee in 2009. While in law school, Mr. Schuessler clerked for Milwaukee Office of the National Labor Relations Board and also worked part-time for a Milwaukee-based claimant’s firm gaining knowledge and experience to help him better defend employers and their carriers.

“As our team continues to grow, so does the depth and breath of our experience across the full spectrum of labor and employment law services we deliver for employers in Wisconsin and beyond,” says Firm President Oyvind Wistrom. “Justin and Sasha both exemplify the qualities we value most – dedication, integrity and fortitude – that foster collaboration among our team members and ensure we are at our best in helping clients navigate their toughest legal challenges.”

WORKER’S COMPENSATION LEGAL UPDATE: WISCONSIN LEGISLATURE INCREASES WEEKLY PPD RATE; CHANGES AVERAGE WEEKLY WAGE CALCULATION FOR PART-TIME EMPLOYEES

By: Daniel Pedriana and Vanja Pemac

On April 8, 2022, Governor Evers signed into law 2021 Wisconsin Act 232 (The Act). The Act, sponsored by the bipartisan House Labor and Integrated Employment Committee, was passed to increase weekly permanent partial disability (PPD) benefits in addition to changing the way that the average weekly wage (AWW) for part-time employees is calculated.

Wisconsin has not raised the weekly PPD benefit rate since 2017. The Act changes the weekly PPD benefit to $415.00 for injuries occurring on or after April 10, 2022. The Act further increases the weekly PPD benefit to $430.00 for injuries occurring on or after January 1, 2023.

The new default rule in Wisconsin is that part-time work (work below 35 hours per week) is expanded to 40 hours per week for purposes of calculating the average weekly wage (AWW). The Wisconsin legislature recognizes that an injury at a part-time job can often have full-time vocational effects for employees, as an injury at one part-time job may hinder an employee’s ability to participate in other part-time job. Thus, the default expansion to a 40 hour workweek may remediate the vocational impact of a work injury.

Previously, a claimant needed to meet four conditions to be considered “part of a class” and have their hours set below 40:

  1. All class members needed to be performing the same type of work at the same location;
  2. The class of part-time employees needed to represent a minimum of 10% of all employees doing the same type of work;
  3. The claimant needed to have a regular schedule that did not vary more than five hours from week to week in the 13 weeks before the injury; and
  4. At least one other employee needed to be in the same class as the claimant.

If the claimant met all of these conditions, their hours would reflect the hours actually worked or expanded to the statutory minimum of 24 hours. If the claimant did not meet all of the conditions demonstrating a regularly scheduled class of part-time employees, their hours would be expanded to reflect a full-time schedule of 40 hours.

Now, the “part of a class” section of the law is eliminated. Any claimant who is engaged in part-time work and injured on or after April 9, 2022, will be considered full time if they worked at the part-time job for twelve months or less. If the claimant had another part-time job, they would be considered full time.

If an employee has worked at a part-time job for twelve months or more and does not have another part-time job, AWW is determined in conjunction with Wis. Stat. § 102.11(1)(ap)(1)(a) or (b), whichever is greater. Subsection (a) provides that AWW will be determined by analyzing actual average weekly earnings for the 52 calendar weeks before the injury, except for the weeks in which no work was performed. Subsection (b) provides that AWW will be determined by the employee’s hourly earnings on the date of the injury multiplied by the average weekly hours worked, except for the weeks in which no work was performed. Both calculations shall be computed and the higher of the two shall be used as the employee’s AWW.

The Act does not affect the ability of the employer to argue that the claimant is self-restricted to part-time work. An employer may rebut the default expansion to a 40 hour workweek for AWW determination by showing proof that the employee chose to work less than full time. Such evidence may include a signed statement by the employee limiting their work hours or other documentation showing an hour or shift preference. Any rebuttal by the employer does not affect the statutory minimum of a 24 hour workweek for AWW calculation.

If you have questions or need assistance, please contact the Lindner & Marsack attorney with whom you regularly work. We will continue providing updates as we learn more about the new Act.

NLRB General Counsel Announces Challenge to Employer Rights During Union Organizing Campaigns

By: Kristofor Hanson

In a new memorandum published today, National Labor Relations Board (the “Board”) General Counsel, Jennifer Abruzzo, stated aloud what many had thought would be a goal of the newly appointed chief lawyer for the agency, challenging an employer’s ability to require employees to attend meetings during a union organizing campaign.

In so doing, Abruzzo has asked the Board to reconsider its precedent and find that mandatory meetings – often referred to as “captive audience” meetings – are unlawful. The General Counsel has taken the position that such meetings “inherently involve an unlawful threat that employees will be disciplined or suffer other reprisals if they exercise their protected right not to listen to such speech.” The protected rights to which she refers are those rights granted to workers under Section 7 of the National Labor Relations Act (the “Act”). Those rights include “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Section 7 rights also include the right of a worker to “refrain from any or all such activities.”

The precedent the General Counsel asks the Board to reconsider dates to 1948 in Babcock & Wilcox Co., 77 NLRB 577 (1948), when the Board found that employers are entitled to require employees, during their work hours, to attend meetings to discuss issues related to a union organizing campaign. Under the Act, Employers are allowed to present factual information to employees during such meetings. They are not, however, allowed to make promises or threaten employees. Accordingly, the Act already places limitations on employers regarding what can be presented during captive audience meetings.

Nevertheless, the General Counsel has taken the position that requiring employees to attend meetings during their working hours crosses a line into the area of coercion and “plainly chills employees’ protected right to refrain from listening to this speech in violation of [the Act].”

Therefore, Abruzzo has asked the Board to revisit this issue and allow employees to refrain from attending any meeting where union organizing will be discussed on paid time and any discussion in which an employee “is cornered by management while performing their job duties.”

The General Counsel contends that imposing these protections will not impair employers’ rights to freedom of expression. However, she does not provide any insight into the mechanisms employers may use to get their message out to employees during an organizing campaign. Those mechanisms will likely be left to meetings on paid time, attendance at which will be entirely voluntary, as well as postings and mailings that have been traditionally used during organizing campaigns.

This request by the General Counsel will likely be met favorably by the Board should it hear a case concerning this issue, as the current Board is comprised of a majority of union-friendly members. The Board may soon hear such a case as complaints on this subject were filed during the recent, failed union organizing campaign at an Amazon facility in Alabama. Should the Board reach a decision on such a case, we will promptly update you with details.

In the meantime, captive audience meetings are still allowed and are an effective way for an employer to get its message out during a union organizing campaign. In these meetings, employers should direct their communications to facts, opinions, and experience with unions, but avoid coercive or threatening language, or promising employees benefits that they may receive should they vote against unionization.

Should you have questions concerning this or any other labor and employment matter, please contact our offices for assistance.

SALLY PIEFER HONORED AMONG “2021 NOTABLE WOMEN IN THE LAW” BY BIZTIMES MILWAUKEE

Lindner & Marsack, S.C., one of the region’s most respected and long-standing management-side labor, employment and worker’s compensation defense firms, today announced that Attorney Sally Piefer has been recognized as a 2021 Notable Women in the Law, an annual showcase of top female attorneys in the region by BizTimes Milwaukee.

“Sally embodies all the professional skills and personal traits that define a top-notch attorney, colleague and role model,” said Oyvind Wistrom, President of Lindner & Marsack. “Her work and her presence elevate our entire team as we help employers in Wisconsin and across the country navigate their toughest legal challenges.”

Piefer is a shareholder and a member of the Board of Directors of Lindner & Marsack. She has extensive experience representing employers in a variety of employment matters, with special emphasis in employment litigation, employment counseling and compliance issues and employee/supervisor training.

Piefer speaks frequently on employment-related topics with a variety of organizations throughout southeastern Wisconsin and is a member of the Wisconsin Bar Association, the American Bar Association, the Waukesha County Bar Association and the Society of Human Resources Management. She has also been honored among “Women in the Law” by the Wisconsin Law Journal and received special recognition from the Waukesha County Community Foundation’s Women of Distinction.

Notable Women in the Law honorees are nominated by their peers at work and in the community. To qualify, nominees must be based in southeast Wisconsin; serving in a senior level role at their firm and in leadership positions outside of their own organization; acting as a role model or mentor to colleagues and associates; and making a significant contribution to advancing workplace equality at their own workplace and beyond.

OSHA’s VACCINE OR TEST RULE REMAINS IN LIMBO FOLLOWING ARGUMENTS BEFORE THE U.S. SUPREME COURT

By Sally A. Piefer

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 the 5th Circuit Court of Appeals. Additional lawsuits were filed across the country in an effort to gain an advantage over which federal Circuit Court would ultimately determine the ETS’ validity. The 6th Circuit Court of Appeals was selected in the lottery, and many believed the ETS might not survive the legal challenges, because the 6th Circuit was largely made up of Republican-appointees.

In mid-December, the 6th Circuit decided to lift the 5th Circuit’s Order preventing the ETS from taking effect. The Court’s decision resulted in an immediate appeal to the U.S. Supreme Court. OSHA pressed forward and adjusted its enforcement dates, saying that it would not issue citations for noncompliance with any documentation requirements before January 10, 2022 and would not issue citations for noncompliance with the testing requirements before February 9, 2022.

This morning, the U.S. Supreme Court heard oral argument on whether the ETS should be stayed pending resolution of the legality of the rule by the 6th Circuit. This morning’s hearing has not resulted in a decision, and ongoing questions loom on whether the ETS will take effect on Monday. A number of the Justices appeared to be in favor of a short stay until a decision could be made by the high court. Several historically conservative Justices appeared to be in favor of the ETS and appeared not likely to favor a long-term stay. The Justices gave no indication when they would issue a decision, but the decision will likely signal the high court’s view of the underlying merits of the case.

Our impression is that this will be a close call. We anticipate that Justices Thomas, Kagan, Breyer and Sotomayor will not be inclined to favor a stay, and these justices focused a number of their comments and questions on the widespread nature of the Omicron variant. Justices Roberts, Barret and Gorsuch appeared to question OSHA’s authority and seemed inclined to favor of a stay. It is unclear how Justices Cavanaugh and Alito will side, based on their comments and questions this morning.

We encourage employers to continue to prepare as if the ETS will become effective on Monday, January 10, 2022. This means you need to continue to take the following steps:

  • Create a policy on vaccination or testing with mask wearing
  • If you will offer employees the option of weekly testing, decide who will bear the cost for testing, and provide employees with paid time off to get vaccinated and to recover from the side effects of the vaccine
  • Ascertain the vaccination status of each employee and obtain acceptable written proof of vaccination
  • Maintain records of the vaccination status for each employee
  • Provide materials encouraging vaccination to your employees and provide information about the ETS
  • Ensure that all employees who are not fully vaccinated wear face coverings when indoors or when occupying a vehicle with another person for work purposes—and enforce this requirement
  • Require employees to immediately provide notice of a positive COVID-19 test or diagnosis and ensure that any employee with a positive test is removed from the workplace pursuant to CDC guidelines
  • Report work-related COVID-19 fatalities to OSHA within 8 hours and work-related in-patient hospitalizations within 24 hours
  • Employers must be prepared to provide documentation of its written policy and the aggregate number of employees vaccinated within 4 business hours of a request by OSHA, and all other records requested by OSHA must be produced by the end of the business day following the request.

If you have questions or need assistance with policy development, please contact the Lindner & Marsack attorney with whom you regularly work. We will continue proving updates as we learn more about new directives, rules, or guidance.

OSHA’s VACCINE OR TEST RULE IS BACK IN PLAY

By Sally A. Piefer

In early November, the Biden administration announced additional steps it was taking to battle the COVID-19 pandemic. The U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) announced a new emergency temporary standard (“ETS”) which it claimed would “protect more than 84 million workers from the spread of the coronavirus on the job.”

Under this ETS, employers with 100 or more employees (as of November 4, 2021) were directed to develop, implement, and enforce a written mandatory COVID-19 vaccination policy. Alternatively, covered employers could adopt a written policy requiring employees to either choose to be vaccinated or undergo regular testing and wear a face covering at work.

Within days after the ETS was released, lawsuits were filed in an effort to halt the rule from going into effect. Parts of the ETS required employers to take certain actions by early December, and the testing/vaccination portion of the rule was slated to go into effect on January 4, 2022. On November 6, 2021, the ETS was halted nation-wide by the Fifth Circuit Court of Appeals. More lawsuits—both in favor and against the ETS—were filed across the country in an effort to gain an advantage in which federal Circuit Court would ultimately determine the ETS’s validity.

The Sixth Circuit Court of Appeals, with jurisdiction over Kentucky, Michigan, Ohio and Tennessee, was selected in the lottery. Many believed that based on the political makeup of that court, largely Republican-appointees, that the ETS might not survive the legal challenges.

The looming winter months, increased hospitalizations for COVID and the Omicron variant took the world by surprise in late November, and health experts opined that Omicron may spread even more quickly than the Delta variant.

Just a few days earlier, the Sixth Circuit determined the ETS’ fate would be decided by a 3-judge panel rather than a single judge. Sixteen active judges on the Sixth Circuit wrote opinions in favor and against this decision, and there was speculation in the legal community on who would sit on the 3-person panel for the Sixth Circuit and determine the ETS’ fate. Legal scholars surmised that based on the concurring and dissenting opinions filed regarding the decision to have a 3-judge panel, that the panel consisted of one judge appointed by the Obama administration, one judge appointed by the George W. Bush administration, and one judge appointed by the Trump administration.

The Biden administration asked the Court to dissolve the Fifth Circuit’s stay. Late on Friday, December 17, 2021, the Sixth Circuit Court of Appeals panel, in a largely unexpected move—and in a divided opinion—decided to lift the Fifth Circuit’s Order preventing the ETS from taking effect. The Court’s 56-page opinion explained, in part, that

Fundamentally, the ETS is an important step in curtailing the transmission of a deadly virus that has killed over 800,000 people in the United States, brought our healthcare system to its knees, forced businesses to shut down for months on end, and cost hundreds of thousands of workers their jobs….

The Court’s decision resulted in an immediate appeal to the U.S. Supreme Court, where another lawsuit is already pending on the legitimacy of the vaccine mandate for health care workers. The question, of course, is whether the ETS will satisfy the “grave danger” requirement for OSHA to have avoided the normal rule-making process.

What now for employers?

When the ETS was halted by the Fifth Circuit, we encouraged employers to continue to plan as if the ETS would take effect, so that employers would not be blindsided if the ETS were allowed to stand. Employers will now, a week before the year-end holidays, need to make sure they are ready for the ETS requirements on January 10, 2022. OSHA has indicated it will not issue citations before January 10, 2022 so that employers can implement the requirements.

Employers who have not already continued to plan for the ETS are encouraged to immediately take the following steps:

  • Create a policy on vaccination or testing with mask wearing
  • If you will offer employees the option of weekly testing, decide who will bear the cost for testing, and provide employees with paid time off to get vaccinated and to recover from the side effects of the vaccine
  • Ascertain the vaccination status of each employee and obtain acceptable written proof of vaccination
  • Maintain records of the vaccination status for each employee
  • Provide materials encouraging vaccination to your employees and provide information about the ETS
  • Ensure that all employees who are not fully vaccinated wear face coverings when indoors or when occupying a vehicle with another person for work purposes—and enforce this requirement
  • Require employees to immediately provide notice of a positive COVID-19 test or diagnosis and ensure that any employee with a positive test is removed from the workplace pursuant to CDC guidelines
  • Report work-related COVID-19 fatalities to OSHA within 8 hours and work-related in-patient hospitalizations within 24 hours
  • Employers must be prepared to provide documentation of its written policy and the aggregate number of employees vaccinated within 4 business hours of a request by OSHA, and all other records requested by OSHA must be produced by the end of the business day following the request.

If you have questions or need assistance with policy development, please contact the Lindner & Marsack attorney with whom you regularly work. We will continue proving updates as we learn more about new directives, rules, or guidance.

LINDNER & MARSACK, S.C., WELCOMES ATTORNEY SAMUEL DRAVER TO WORKER’S COMPENSATION DEFENSE TEAM

Lindner & Marsack, S.C., announced today that Attorney Samuel Draver has joined the firm as an Associate on their Worker’s Compensation Defense team. Draver will split his time between the Milwaukee and Madison offices of Lindner & Marsack.

Prior to joining Lindner & Marsack, Draver worked for other Milwaukee law firms in the areas of worker’s compensation defense, labor law and personal injury.

“Sam will be a great asset to our widely recognized worker’s compensation defense practice,” says Firm President Oyvind Wistrom. “We continue build depth and experience on our team that translates to reliable results and consistent, trusted counsel for our clients.”

Draver received his law degree from Marquette University Law School in 2017 and his Bachelor of Arts in 2014, also from Marquette University. During law school, he served on the Student Bar Association Executive Board and interned with the Wisconsin Supreme Court. Draver is a member of the State Bar of Wisconsin and the Wisconsin Association of Worker’s Compensation Attorneys (WAWCA).

AT-HOME COVID-19 TESTS SOON TO BE COVERED BY EMPLOYER HEALTH PLANS

By: David Keating

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 at no cost to the health plan participant during the public health emergency.

The Department of Health and Human Services Secretary has renewed the public health emergency every three months since January 2020.  The current public health emergency expires on January 15, 2022.  Based on the deadline for the guidance and the wording of the action plan, it is certainly expected that the public health emergency will be extended into the foreseeable future.

Under the current guidance, over-the-counter at-home COVID tests are covered at no cost to the health plan participant only when ordered by an attending health care provider following a determination of medical necessity.  The forthcoming guidance will likely eliminate the involvement of a health care provider.

The action plan states that workplace screening will remain consistent with current guidance.  Under the current guidance, coverage for COVID testing without health plan participant cost-sharing is not required if the purpose is general workplace health and safety (such as return-to-work programs, public health surveillance, or any other employment-related reason not primarily intended for individualized diagnosis or treatment of COVID-19.  The action plan may indicate that coverage for at-home testing without health plan participant cost-sharing will still not be required if the test’s purpose is to allow employees to return to the workplace in accordance with an employer’s policy and/or OSHA’s Emergency Temporary Standard for employers with 100+ employees (which is currently stayed pending litigation).  If that is the case, it would seem that it would be extremely difficult to monitor from a practical standpoint.

The action plan leaves open many questions for employer health plans that the forthcoming guidance should answer.  For instance, may group health plans impose limits (such as number, frequency, or dollar caps) on coverage and reimbursement of at-home tests without participant cost-sharing?  Will the at-home test be fully covered at the point of sale or will the health plan participant need to submit claims for reimbursement?  Employers should closely watch for the guidance to determine what changes will be required to their health plans and the costs associated to those changes due to the expanded scope of required coverage.

Lindner & Marsack, S.C. represents employers in all areas of labor and employment law.  If you have any questions about the President’s action plan or any other labor or employment issue involving your business, please contact us at any time.

EEOC EXPANDS ITS COVID-19 GUIDANCE CLARIFYING WHEN COVID-19 MAY BE A DISABILITY

By: David Keating

Throughout the pandemic, the Equal Employment Opportunity Commission (“EEOC”) has continuously updated its COVID-19 Guidance to provide employers with assistance on issues arising under the antidiscrimination laws that it enforces.  Yesterday, the EEOC added a new section to clarify under what circumstances COVID-19 may be considered a disability under the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act of 1973.

EEOC’s new questions and answers focus broadly on COVID-19 and the definition of disability under Title I of the ADA and Section 501 of the Rehabilitation Act which both address employment discrimination.  The updates also provide examples illustrating how an individual diagnosed with COVID-19 or a post-COVID condition could be considered to have a disability under the laws the EEOC enforces.

Workers with disabilities stemming from COVID-19 are protected from employment discrimination and may be eligible reasonable accommodations.

As the EEOC notes, the key information includes:

  • In some cases, an applicant’s or employee’s COVID-19 may cause impairments that are themselves disabilities under the ADA, regardless of whether the initial case of COVID-19 itself constituted an actual disability.
  • An applicant or employee whose COVID-19 results in mild symptoms that resolve in a few weeks, with no other consequences, will not have an ADA disability that could make someone eligible to receive a reasonable accommodation.
  • Applicants or employees with disabilities are not automatically entitled to reasonable accommodations under the ADA. They are entitled to a reasonable accommodation when their disability requires it, and the accommodation is not an undue hardship for the employer.  Employers, however, can choose to do more than the ADA requires.
  • An employer risks violating the ADA if it relies on myths, fears, or stereotypes about a condition and prevents an employee’s return to work once the employee is no longer infectious and, therefore, medically able to return without posing a direct threat to others.

Based on this new guidance, employers need to consider each situation on a case-by-case basis and avoid assuming that simply because the employee’s medical condition and/or need for an accommodation is caused by the COVID-19 virus that it falls outside the scope of the ADA or the Rehabilitation Act.  Please do not hesitate to contact us if you need specific guidance on a particular situation.

Lindner & Marsack, S.C. represents employers in all areas of labor and employment law.  If you have any questions about the recent EEOC technical assistance or any other labor or employment issue involving your business, please contact us at any time.

Update on OSHA’s Mandatory Vaccine Rule: What Should Employers Do?

By Sally A. Piefer

November 23, 2021

As we previously reported, on November 4th, OSHA released its emergency temporary standard (“ETS”) which requires employers with 100 or more employees to develop, implement, and enforce a written mandatory COVID-19 vaccination policy. Alternatively, covered employers may adopt a written policy requiring employees to either choose to be vaccinated or undergo regular testing and wear a face covering at work.

The ETS gave employers until December 5, 2021 to do the following:

  • Develop a written vaccination and/or testing policy.
  • Determine which employees are vaccinated and collect documentation from employees who are vaccinated.
  • Develop educational materials to provide to employees covering (i) requirements of the ETS and its workplace policies; (ii) a copy of the CDC’s Key Things to Know About COVID-19 Vaccines; (iii) information prohibiting retaliation and discrimination; and (iv) information discussing criminal penalties for intentionally providing false information or documentation.

The testing and masking requirements were set to be implemented on January 4, 2022.

Almost immediately, a number of lawsuits were filed by employer groups across the nation seeking to invalidate the ETS, and shortly thereafter a number of labor unions and employee groups began filing similar lawsuits in employee friendly jurisdictions. All of those petitions have been consolidated in and will be decided by the Sixth Circuit Court of Appeals. Before the Sixth Circuit assumed jurisdiction of the cases, the Fifth Circuit Court of Appeals, a notably employer-friendly jurisdiction (or court), granted a Motion to Stay Enforcement of the ETS, finding the ETS overbroad. Several days later, OSHA posted on its website that it was suspending enforcement of the ETS “pending further developments in the litigation.”

This morning, the Biden Administration filed an Emergency Motion asking the Sixth Circuit to Dissolve the Stay issued by the Fifth Circuit. While it is still too soon to speculate how the Sixth Circuit will rule in response to the current Motion, many clients are asking what they should do since the ETS appears to be in legal limbo.

What should employers do while the ETS is in limbo? Even though the ETS has presently been paused, employers are encouraged to continue with their efforts to implement the ETS in the event the Sixth Circuit lifts the Stay. In such event, it is presently unclear how quickly OSHA may try to enforce the December 5 deadline. In addition, it would be wise for employers to keep employees informed about the process so that if the ETS is enforced, an employer can quickly move to get into compliance.

Employers should also be aware that the current proceedings in the Sixth Circuit do not impact the Executive Order 14042 mandating vaccines for certain covered government contractors and subcontractors, the vaccine mandate from the Centers for Medicare & Medicaid Services (CMS) for healthcare employers, or any state or local vaccination mandate or testing requirements.

If you have questions about this new development or about your obligations under any vaccine mandate or testing requirements, please contact Attorney Sally Piefer or the Lindner & Marsack attorney with whom you regularly work. We will continue proving updates as we learn more about new developments and how they will impact your business.