Monthly Archives: November 2021

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.





Lindner & Marsack, S.C., today announced four attorneys acknowledged by Super Lawyers magazine. Honorees include Douglas Feldman, Gary Marsack, Daniel Pedriana and Oyvind Wistrom. Feldman and Wistrom were also named as Best Lawyers by U.S. News & World Report, along with Daniel Finerty and Jonathan Swain.

“While this recognition rightly highlights the accomplishments of several individual attorneys, it also is a testament to the dedication and quality of work provided by our entire team as we help employers in Wisconsin and across the country minimize risks and navigate their toughest legal challenges,” said Wistrom, President of Lindner & Marsack.

Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. Attorneys are selected using a rigorous, multi-phase rating process in which peer nominations and evaluations are combined with third party research. The objective of the program is to create a credible, comprehensive, and diverse listing of outstanding attorneys that can be used as a resource for attorneys and consumers searching for legal counsel.

Similarly, Best Lawyers rankings are based on a rigorous process that includes the collection of client and lawyer evaluations, peer review from leading attorneys in their field, and review of additional information provided by law firms as part of the formal submission process.

“First and foremost, we do what we do to advance the interests and success of our clients,” concluded Wistrom. “That said, it’s still an honor to see that work acknowledged and honored with the recognition of our peers and these industry-leading publications.”

OSHA’s Mandatory Vaccine Rule Paused

By Sally A. Piefer

Last week, OSHA released its mandatory vaccine emergency temporary standard (ETS), which would require employers with 100 or more employees to implement a mandatory vaccine requirement for their workers, or alternatively to give employees the choice between receiving the COVID-19 vaccine or being subject to mandatory weekly testing.

As we anticipated, a number of lawsuits were filed across the nation seeking to invalidate the ETS. One of those lawsuits was filed in the Fifth Circuit Court of Appeals, which has jurisdiction over Louisiana, Mississippi and Texas. As you might recall, the Fifth Circuit was the location where the white-collar exemption rule was litigated several years back, and has been historically known as an employer-friendly location for challenges to earlier OSHA ETS.

On Saturday, the Court granted a Motion to Stay Enforcement of the ETS, pending a decision from the Court. OSHA has until 5:00 p.m. today (Monday) to respond to the request for a permanent injunction, and the petitioners have until 5:00 p.m. on Tuesday to file a reply.

What does this mean for employers? Technically, because the Fifth Circuit only has jurisdiction over the states identified, the ETS has been temporarily halted in those states. However, similar lawsuits have been filed across the country – including several which have jurisdiction over Wisconsin. The Wisconsin Institute for Law & Liberty (WILL) challenged the OSHA ETS last week and similarly asked for the court to issue an emergency motion. In that case, OSHA has until November 12, 2021 to respond. The State of Indiana also filed a lawsuit and similarly asked for a stay, but to date no response deadline has been set in that case. Similar lawsuits are pending in the Sixth Circuit (Kentucky, Michigan, Ohio & Tennessee), the Eighth Circuit (Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota & South Dakota) and the Eleventh Circuit (Alabama, Florida & Georgia)

If you have questions about this new development, please contact Attorney Sally Piefer or the Lindner & Marsack attorney with whom you regularly work. We will continue providing updates as we learn more about new developments in the cases being litigated and how they will impact your business.


By Tyler J. Hall

On Thursday, November 4, 2021, the Biden administration, officially announced additional steps it is taking to battle the COVID-19 pandemic, and it starts with vaccinating more American workers. The U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) announced the new emergency temporary standard (“ETS”) “to protect more than 84 million workers from the spread of the coronavirus on the job.”

Under this new temporary standard, covered employers must 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. Covered employers must provide up to 4 hours paid time off for workers to receive each vaccination dose, and reasonable time and paid sick leave to recover from side effects of each vaccine dose. An employer must provide information in a language and at a literacy level its employees will understand.

“Acceptable proof of vaccination status” includes: (i) record of immunization from a health care provider or pharmacy; (ii) a copy of the COVID-19 Vaccination Record Card; (iii) medical records documenting the vaccination; (iv) immunization records from a public health, state, or tribal immunization information system; or a copy of any other official documentation that contains the type of vaccine administered, date(s) of administration, and the name of the health care professional(s) or clinic site(s) administering the vaccine(s). A signed and dated employee attestation is acceptable in instances when an employee is unable to produce proof of vaccination. Employees who cannot provide an acceptable form of vaccination or who won’t provide an attestation must be treated as unvaccinated. Employers must also maintain and preserve a record and roster of each employee’s vaccination status—subject of course to applicable confidentiality requirements.

The ETS covers employers with 100 or more employees. The 100 employee threshold includes all employees, regardless of location, and regardless of whether they are working remotely. While they count towards the threshold, fully remote workers and workers who work exclusively outdoors are not subject to the ETS. Employees from a staffing agency are only counted by the staffing agency, not the host employer.

Importantly, employers are not required to pay for testing or face coverings. This is designed to push more employees to get vaccinated in lieu of paying for testing. Collective bargaining agreements (CBA) may dictate who pays for testing agreements or state or local law mandates may impact whether an employer must pay for the testing and/or face coverings.

The ETS also requires employers to do the following: (1) require employees to provide prompt notice of a positive COVID-19 test or diagnosis; (2) remove COVID-19 positive employees from the workplace; (3) test non-vaccinated workers at least once every 7 days (if the worker is in the workplace at least once a week) or within 7 days before returning to work (if the worker is away from the workplace for a week or longer); and (4) ensure unvaccinated employees wear face coverings indoors or while in a vehicle with another person for work purposes. Tests cannot be both self-administered and self-read unless observed by the employer or an authorized telehealth proctor. Employers must maintain a record of each test result provided by an employee and must prevent employees from reporting to work until a test is provided.

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.

According to OSHA, this ETS with cover two-thirds of the nation’s private-sector workforce. In the 26 states and 2 territories with OSHA State Plans, the ETS will also cover public sector workers employed by state and local governments, including educators and school staff. Wisconsin does not have an OSHA State Plan.  The ETS does not cover those health care employees covered by the earlier standard or federal contractors covered by the earlier executive order.  It also allows for a CBA or state/local law to place more stringent restrictions on the employers.

The ETS is effective immediately upon its publication in the Federal Register, which is scheduled for November 5, 2021. Employers must comply with most requirements within 30 days of publication. Employers must comply with testing requirements within 60 days of publication.

Another rule issued by the Centers for Medicare & Medicaid Services requires roughly 17 million health care workers to be vaccinated by the same deadline, but with no option for weekly testing in lieu of vaccination.

Employers covered by the OSHA rule can challenge it in court, and challenges are expected in the coming days. OSHA will continue to monitor the pandemic, and make changes to the ETS as necessary.

The above information provides only a summary of the highlights of the ETS. If you have questions or need assistance with policy development, please contact Attorney Tyler Hall or the Lindner & Marsack attorney with whom you regularly work. We will continue providing updates as we learn more about new directives, rules, or guidance.