Category Archives: OSHA

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.


By: Samantha J. Wood

On June 10, 2021, the Occupational Safety and Health Administration (“OSHA”) issued guidance for all employers, along with a much-anticipated Emergency Temporary Standard (“ETS”), limiting the ETS to healthcare workers.

Emergency Temporary Standard for Healthcare Workers

After much consideration, OSHA determined that an emergency standard was necessary because existing standards and regulations, and the OSH Act’s General Duty Clause were inadequate to address the COVID-19 hazard for healthcare workers.  OSHA determined that these workers face the highest risk of COVID-19 exposure because people with suspected or confirmed COVID-19 are reasonably expected to be present in the workplace.

The ETS is limited to workers who provide healthcare services and healthcare support services, including employees in hospitals, nursing homes, and assisted living facilities; emergency responders; home healthcare workers; and employees in ambulatory care facilities where suspected or confirmed COVID-19 patients are treated.

This standard requires healthcare employers to comply with several provisions, including:

  1. Developing and implementing a COVID-19 plan that includes a designated workplace safety coordinator, a workplace specific hazard assessment, and policies and procedures to minimize the risk of COVID-19 exposure;
  1. Limiting and monitoring points of entry to settings where direct patient care is provided; screening and triaging patients, clients and other visitors and non-employees; and implementing patient management strategies;
  1. Providing and ensuring employee wear a facemask when indoors and when occupying a vehicle with others for work purposes;
  1. Continuing physical distancing, installing physical barriers, ensuring proper ventilation, and cleaning and disinfecting surfaces and equipment in accordance with CDC guidelines;
  1. Screening employees before each workday and shift and requiring employees to promptly notify the employer if the employee is COVID-19 positive, is suspected of having COVID-19, or is experiencing COVID-related symptoms;
  1. Providing reasonable time and paid leave for vaccinations and vaccine side effects;
  1. Implementing training to ensure employees understand COVID-19 transmission and situations in the workplace that could result in infection;
  1. Establishing a COVID-19 log of all employee instances of COVID-19 without regard to occupational exposure and following requirements for making records available to employees/representatives (if more than 10 employees); and
  1. Reporting work-related COVID-19 fatalities and in-patient hospitalizations to OSHA.

The ETS exempts fully vaccinated workers from masking, distancing, and barrier requirements when in well-defined areas where there is no reasonable expectation that any person with suspected or confirmed COVID-19 will be present.

Covered employers must comply with all ETS provisions within 14 days of its publication in the Federal Register, with the exception of the requirements related to physical barriers, ventilation and training.  Employers must comply with physical barriers, ventilation and training requirements within 30 days of the ETS’s publication.

OSHA Guidance for All Employers

At the same time OSHA released its ETS, it also issued updated COVID-19 guidance for all employers on mitigating and preventing the spread of COVID-19 in the workplace.  OSHA expressly acknowledged and adopted the CDC’s statement that fully-vaccinated individuals can resume activities without wearing masks or physically distancing, and stated that “most employers no longer need to take steps to protect their workers from COVID-19 exposure in any workplace or well-defined portions of a workplace where all employees are fully vaccinated.”

However, OSHA’s guidance reminds employers that it still has an obligation to protect unvaccinated and otherwise at-risk employees, pursuant to OSH Act’s General Duty Clause.  In order to protect unvaccinated and other at-risk employees, OSHA recommends that employers implement multiple layers of control, such as:

  1. Encouraging vaccinations and taking steps to make it easier for workers to get vaccinated;
  1. Instructing unvaccinated workers who have had close contact with someone who tested positive, and all workers who are experiencing COVID-related symptoms or who are infected with COVID-19 to stay home;
  1. Implementing social distancing for unvaccinated and otherwise at-risk workers in communal work areas and limiting the number of unvaccinated or at-risk workers in one place at any given time (such as by implementing flexible work hours, telework, or other flexible meeting and travel options);
  1. Implementing transparent shields or other solid barriers at fixed workstations where unvaccinated or otherwise at-risk workers are not able to remain at least six feet apart from others;
  1. Requiring unvaccinated or at-risk employees to continue to wear face coverings, providing face coverings to employees, supporting all workers in continuing face covering use if they choose, and recommending or requiring unvaccinated customers or visitors to wear face coverings;
  1. Educating and training managers, employees, and other contractors on COVID-19 policies and procedures;
  1. Improving air supply/ventilation procedures;
  1. Performing cleaning and disinfection procedures;
  1. Recording and reporting COVID-19 infections and deaths (excluding employees experiencing adverse side effects of the COVID-19 vaccination); and
  1. Implementing protections from retaliation and setting up an anonymous process for workers to voice concerns about COVID-19 hazards.

In high-risk workplaces, such as manufacturing, meat and poultry processing, and high-volume retail and grocery settings, where there is a heightened risk of COVID-19 exposure due to close or prolonged contact, OSHA further recommends:

  1. Implementing staggered break times to avoid congregations of unvaccinated or otherwise at-risk workers;
  1. Staggering workers’ arrival and departure times to avoid congregations of unvaccinated or otherwise at-risk employees; and
  1. Providing visual floor or sign markings as a reminder to maintain six feet of distance.

In determining whether to modify policies or procedures, employers should carefully consider the above recommendations, as well as CDC guidance, and other state and local requirements to ensure continued legal compliance.

Addressing COVID-19 Workplace Issues: Responding to Employers’ Most Common Questions

By:  Oyvind Wistrom and Sally Piefer

The NBA has suspended play.  The NCAA tournament has been cancelled.  The World Health Organization (WHO) has now declared that the COVID-19 Coronavirus is a pandemic.  Either your business has already been directly or indirectly affected or it inevitably will be affected by COVID-19.  What can you do as an employer?  The following tips should help you navigate the novel issues created by this unprecedented situation.

  1. What if an employee reports to work with flu-like symptoms – what can we do as an employer?

If any employee presents themselves at work with a fever or difficulty breathing, employers may ask such employees if they are experiencing influenza-like symptoms, such as fever or chills and a cough or sore throat.  Employers must maintain all information about employee illness as a confidential medical record in compliance with the Americans with Disabilities Act (ADA).  If an employee is experiencing these symptoms, the employee should be directed to seek immediate medical evaluation.  It is also recommended that employers train supervisors on how to recognize these symptoms, while stressing the importance of not overreacting to situations in the workplace potentially related to COVID-19 in order to prevent panic among the workforce.

  1. Can we ask an employee to stay home or leave work if they exhibit symptoms of the COVID-19 coronavirus or the flu?

Yes.  The Center for Disease Control (CDC) has made it clear that employees who exhibit influenza-like symptoms at work during a pandemic should leave the workplace and be asked to stay home.  Employees who have symptoms of acute respiratory illness are recommended to stay home until they are free of a fever (100.4º F), signs of a fever, or any other symptoms for at least 24 hours, without the use of fever-reducing or other symptom altering medicines.  Now that the COVID-19 virus has been declared a pandemic by the WHO, the Equal Employment Opportunity Commission (EEOC) has stated that advising workers to go home is not disability-related if the symptoms presented are akin to the seasonal influenza.  An employer may therefore require workers to go home if they exhibit symptoms of the COVID-19 coronavirus or the flu without running afoul of the EEOC’s interpretation of the ADA.

  1. Can an employer take an employee’s temperature at work to determine whether they might be infected?

Maybe.  The ADA places restrictions on the inquiries that an employer can make into an employee’s medical status, and the EEOC considers taking an employee’s temperature to constitute a “medical examination” under the ADA.  The ADA prohibits employers from requiring medical examinations and making disability-related inquiries unless (1) the employer can show that the inquiry or exam is job-related and consistent with business necessity, or (2) the employer has a reasonable belief that the employee poses a “direct threat” to the health or safety of the individual or others that cannot otherwise be eliminated or reduced by reasonable accommodation.

The EEOC takes the position during a pandemic that employers should rely on the latest CDC and state or local public health assessments to determine whether the pandemic rises to the level of a “direct threat.”  The assessment by the CDC as to the severity of COVID-19 will likely provide the objective evidence needed for a medical examination.  If COVID-19 becomes widespread, as determined by state or local health authorities or the CDC, then employers would likely be permitted to take an employee’s temperature at work.  However, as a practical matter, an employee may be infected with COVID-19 without exhibiting any symptoms such as a fever, so temperature checks may not be the most effective method for protecting your workforce.

  1. An employee of ours has tested positive for COVID-19. What should we do?

In addition to sending the employee with the positive test home, you should send all employees who worked closely with that employee home for a 14-day period of time to ensure the infection does not spread.  Make sure the affected employee identifies all individuals who worked in close proximity (within six feet) with them in the previous 14 days to ensure you have a full list of those who should be sent home.  When sending the employees home, do not identify by name the infected employee or you could risk a violation of the ADA.  You may also want to consider asking a cleaning / remediation company to undertake a deep cleaning of your affected workspaces. If you work in a shared office building or area, you should inform building management so they can take whatever precautions they deem necessary.

  1. Can an employee refuse to come to work because of fear of COVID-19 infection?

Employees are only entitled to refuse to report to work if they believe they are in imminent danger.  Section 13(a) of the Occupational Safety and Health Act (OSH Act) defines “imminent danger” to include “any conditions or practices in any place of employment which are such that a danger exists which can reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this Act.”  This is a relatively high standard that requires a “threat of death or serious physical harm,” or “a reasonable expectation that toxic substances or other health hazards are present, and exposure to them will shorten life or cause substantial reduction in physical or mental efficiency.”

For an employee to refuse to report for work, the threat must be immediate or imminent, which means that an employee must believe that death or serious physical harm could occur within a short period of time.  Requiring travel to certain areas of the world or requiring employees to work with patients in a medical setting without personal protective equipment at this time may rise to this threshold.  Most work conditions in the United States, however, would not presently meet this threshold.  Each case must be evaluated on its own merits and employers should seek to determine whether their workplace creates imminent danger to employees.

  1. May an employer require a new employee to have a post-offer medical examination to determine their general health status?

Yes, the ADA allows a medical examination of a new employee as long as it is required only after a conditional offer of employment is made.  The medical examination is permitted so long as all entering employees in the same job category are required to undergo the medical examination and the information obtained regarding the medical condition or history of the applicant is collected and maintained on separate forms and in separate medical files and is treated as a confidential medical record.

Employers may also ask if they are experiencing any symptoms of COVID-19 – fever, cough, shortness of breath or other acute respiratory symptoms.  If the applicant or new employee answers yes, then you can ask them to delay starting for 14 days.  Be sure to maintain the confidentiality of the responses.

  1. May an employer encourage employees to telework (i.e., work from an alternative location such as home) as an infection-control strategy during a pandemic?

Yes.  Telework is an effective infection-control strategy that is also familiar to ADA-covered employers as a reasonable accommodation.  In addition, employees with disabilities that put them at high risk for complications of pandemic influenza may request telework as a reasonable accommodation to reduce their chances of infection during a pandemic.  An employer is not required to provide telework as an option to all employees, but is recommended that if the opportunity is presented to a certain classification of employees, all other employees in that job classification should similarly be permitted to telework.

8.     During a pandemic, may an employer require its employees to adopt infection-control practices, such as regular hand washing, in the workplace?

Yes.  Requiring infection control practices, such as regular hand washing, coughing and sneezing etiquette, and proper tissue usage and disposal, does not implicate the ADA.  The messages you should be giving to your employees are:

  • Wash your hands often with soap and water for at least 20 seconds. If soap and water are not available, use an alcohol-based hand sanitizer.
  • Avoid touching your eyes, nose, and mouth with unwashed hands.
  • Avoid close contact with others, especially those who are sick.
  • Refrain from shaking hands with others for the time being.
  • Cover your cough or sneeze with a tissue, then throw the tissue in the trash.
  • Clean and disinfect frequently touched objects and surfaces.
  • And, perhaps most importantly, tell employees to stay home if they are sick.

9.     Can we require employees who are sent home or who do not report for work to use accrued PTO time?

Yes.  At least under Wisconsin law, an employer may require employees to use accrued PTO time if they are unable or unwilling to report to work – this is the case even if the employer shuts down a facility and the employee is therefore unable to work.  The only exception in Wisconsin would be with respect to employees who suffer from a serious health condition under the Wisconsin FMLA.  In such cases, an employer is not permitted to mandate that employees use their personal PTO time during the pendency of the Wisconsin approved portion of the FMLA leave (two weeks).  After an employee has used up their two-week allotment of Wisconsin FMLA, an employer can then mandate that PTO be utilized.

  1. As Spring Break is approaching, what questions can I ask about employees’ personal vacations?

You can ask your employees whether they have traveled to any locations the CDC or state health officials have indicated are destinations with a risk of community-spread coronavirus—currently about 30 countries in Europe (along with China, Iran, Japan, Singapore, South Korea, Taiwan & Thailand).  Check the CDC website for a list of current countries (  The CDC recommends that anyone traveling to these countries should stay home for 14 days from the time the employee left the country and to practice social distancing.  Some employers have initiated mandatory time away from work if employees are returning from a country on the CDC list.

You can also ask employees whether they been on a cruise ship.  If on a cruise ship in the last 14 days, the employee should stay home for 14 days if a case of Coronavirus was reported on the ship during the cruise.  Otherwise, it does not appear the CDC is currently recommending any work-related social distancing – unless the person is exhibiting symptoms – fever, cough, trouble breathing.  However, the situation is in constant flux, so you may want to check the CDC website or contact legal counsel for up to date guidance.

Lindner & Marsack, S.C. represents employers in all areas of labor and employment law.  If you have any other labor or employment matter involving your business, please either contact Oyvind Wistrom at or Sally Piefer at, or any other attorney you may work with at the firm.



By: Laurie A. Petersen and Samantha J. Wood

On Thursday, November 7, 2013, OSHA issued a proposed rule amending 29 C.F.R. § 1904.41 to require certain employers to electronically submit injury and illness information that most employers are required to maintain under § 1904. The only employers unaffected by this rule are those that are exempted from maintaining injury and illness records, which includes companies that had ten or fewer employees at all times during the last calendar year, and companies that have been classified in a specific low-hazard retail, service, finance, insurance, or real estate industry.1

For those employers that are required to maintain injury and illness records under OSHA’s regulations, the rule imposes three new electronic reporting requirements:

(1) Establishments with 250 or more employees at any time during the prior calendar year (including full, temporary, and seasonal workers) will be required to electronically submit information from their injury and illness records (Form 300 and Form 301) to OSHA or OSHA’s designee on a quarterly basis.

(2) Establishments with 20 or more employees at any time during the prior calendar year, that are among certain designated industries, will be required to electronically submit information from the OSHA annual summary form (300A) to OSHA or OSHA’s designee on an annual basis. This submission will replace OSHA’s annual injury and illness survey that employers are required to complete and submit under 1904.41(a). The designated industries will be
those industries covered by Part 1904 with a 2009 Days Away From Work, Job Restrictions, or Job Transfer (DART) rate in the Bureau of Labor Statistics’ Survey of Occupational Injuries and Illnesses of 2.0 or greater. Among others, the designated industries will include: construction, manufacturing, wholesale trade, department and grocery stores, waste collection, nursing care facilities, gambling industries, and dry-cleaning and laundry services.

(3) All employers who receive notice (by mail, announcements on the OSHA website, the OSHA newsletter, and the Federal Register) will be required to electronically submit specified information from their injury and illness records to OSHA or OSHA’s designee.

To submit injury and illness records, employers will be required to register their establishments on OSHA’s data collection website. OSHA intends to scrub the data of personally identifiable information and make the data public. The purpose of publication is to allow employers to benchmark their performance against others in their industry, and encourage employers to improve safety. Information will also be available for researchers to understand and identify emerging health hazards. According to OSHA, this initiative will not result in more OSHA enforcement, but will target employers who are in need of free consultants, educational materials, and health and safety inspections.

The public comment period ends February 6, 2014. Comments can be submitted electronically at, by fax at (202) 693-1648, or by mail at OSHA Docket Office, Docket Number OSHA-2013-0023, U.S. Department of Labor, Room N-2625, 200 Constitution Avenue NW, Washington, DC 20210. A public meeting will be held Thursday, January 9, 2014 from 9 a.m. to 4:30 p.m. at the U.S. Department of Labor in Washington, D.C. Interested parties must request attendance by Friday, December 13, 2013.

1 To determine whether your business establishment is classified in a specific low-hazard retail, service, finance, insurance, or real estate industry, see 1904 Subpart B, Appendix A at

If you have questions about this material, contact Laurie A. Petersen at, Samantha J. Wood at, or any other attorney you have been working with here at Lindner & Marsack, S.C.