Monthly Archives: January 2022


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.


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.