With federal COVID vaccine mandate on hold, what now?
On Nov. 5, the U.S. Occupational Safety and Health Administration (OSHA) published nearly 500 pages of emergency temporary standards (ETS) that, among other things, would have required employers with 100 or more employees to require their employees to be fully vaccinated days into the new year. Employers covered by the ETS may, but are not required to, allow unvaccinated employees to submit to weekly COVID-19 testing and wear face coverings in the workplace.
A federal appeals court has put the ETS on hold indefinitely. OSHA consequently has suspended implementing the ETS for now. What does that mean for California employers?
Relationship between Cal-OSHA and U.S. OSHA
California is one of 22 states that has its own workplace safety agencies. Federal law requires such state agencies to adopt standards “at least as effective as” the federal emergency temporary standards within 30 days of adoption of the federal standards.
The California Occupational Safety and Health Standards Board (OSHSB) was set to do just that last Thursday on an expedited basis. The state’s existing emergency temporary standards contain no vaccine mandate or weekly testing requirement for unvaccinated employees. OSHSB intended to adopt the federal ETS through the “Horcher” process, named for the sponsoring legislator, by adopting state standards “identical to the federal standard with the exception of editorial and format differences.”
Fed mandate on hold
Not now. On Nov. 12, the New Orleans-based 5th Circuit of the U.S. Court of Appeals issued a
FROM
preliminary injunction blocking the new OSHA regulations. The court ruled that the states and businesses challenging the federal rule were likely ultimately to prove that OSHA exceeded its lawful authority. That case and dozens of others have been combined and transferred to the Cincinnati-based 6th Circuit, which may decide to keep the 5th Circuit order in place or instead allow the OSHA standards to go into effect pending resolution of the legal challenges.
What that means for state workplace mandates
The suspension of the new federal rules leaves the regulation of the safety of the pandemic-era California workplace where it has been for months. Nonunionized private California employers — of any size — may mandate that their employees be vaccinated, as long as employers accommodate employees with medical conditions making vaccination physically dangerous, such as a documented history of severe allergic reaction to components of the COVID-19 vaccine, or with bona fide religious objections. State regulations require health care workers to be vaccinated, subject to the same exceptions.
Other state COVID workplace regulations remain
Under OSHSB emergency temporary standards adopted in June, all employers generally must retain records of the vaccination status of their employees by: (1) maintaining a copy of an employee-provided document proving vaccination, such as a vaccine card; (2) viewing an employee’s vaccination documentation and keeping a record of having done so; or (3) having an employee self-attest to vaccination and maintaining a record of that self-attestation. Any such records must be kept confidential.
An employer may dispense with this documentation process only by requiring all of its on-site employees to wear a face covering. An employee who chooses not to submit proof of vaccination status must be treated as unvaccinated and required to wear a face covering indoors.
Unvaccinated employees may go unmasked in the workplace only in limited situations, such as when they are alone in a room or vehicle; eating and drinking while employees are at least six feet apart; and while performing a task that cannot be done with a face covering.
OSHSB rules also require California employers to inform their employees about the employer’s COVID-19 policies; how to access COVID-19 testing and vaccination; and the fact that vaccination is effective at preventing COVID-19, protecting against both transmission and serious illness or death.
While the litigation over the federal OSHA ETS proceeds, California employers should recognize their rights and obligations under existing pandemicrelated California workplace regulations as they continue to be revised and under generally applicable law as it continues to evolve.
The NEW TV Weekly Call 1-877-521-8265 to subscribe.
LOOK WHO’S TALKING
The Balancing Act A visit to SoCal Gas; affordable ideas for holiday shopping needs. LIFE 7:30 a.m.
The Dr. Oz Show Answers to health questions; Holly Robinson Peete discusses ADHD; outrageous things to eat. (N) CW Noon
Dr. Phil A 32-year-old who still lives at home wishes his father would die; Jackie Evancho performs.
OWN 8 a.m.
Dr. Phil Linda enables her 32-year-old son, who is addicted to pills and has an expensive gambling problem. OWN Noon
Dr. Phil A couple need to stop enabling their 29-year-old heroin addict son, so he can get clean.
OWN 9 a.m.
Dr. Phil A 6-year-old is murdered by her mom’s boyfriend. OWN 10 a.m.
Dr. Phil Ian asks his fiancee to sign a prenup at the last minute because of rumors. OWN 6 p.m.
Dr. Phil Crystal accuses her ex-boyfriend of sexually assaulting their 3-year-old daughter. OWN 4 p.m.
The Ellen DeGeneres Show Dennis Quaid; Katilyn Dever (Dopesick). (N) NBC 3 p.m.
The Kelly Clarkson Show Kelly sings Lady Like; Kirsten Dunst; Brooke Shields; Holiday Dog Fashion Show. (N) NBC
2 p.m.NBC 3 a.m.BRAVO 4 a.m.
Late Night With Seth Meyers Michael Che; Adam Schiff; Jon Epcar with the 8G Band. (N)
NBC 12:37 a.m.
Live with Kelly and Ryan Halle Berry (Bruised); David Muir (World News Tonight). (N) ABC 9 a.m.
Tamron Hall Alicia Witt (book Small Changes) performs; Liza Koshy (Liza on Demand). OWN
6 a.m.
The Tonight Show Starring Jimmy Fallon Jeremy Renner; Kristin Chenoweth; Jenny Lewis performs. (N) NBC 11:34 p.m.
The Wendy Williams Show Bevy Smith, AJ Gibson, Devyn Simone and Elizabeth Wagmeister weigh in on the latest Hot Topics. MYTV 5 p.m.
TODAY’S TOP MOVIES
Hedgehogs (2016, Children’s) Voices of Anthony Padilla. Animated. Bobby the hedgehog joins forces with his animal friends to save their natural habitat from a human threat. (2:00) (PG) (CC) FX 7:30 a.m.
The Mighty McGurk ››› (1947, Comedy-Drama) Wallace Beery. A saloon brawler befriends a British boy in the 1890s Bowery. (1:45) (NR) TCM 7:45 a.m.
Stand by Me ›››› (1986, Comedy-Drama) Wil Wheaton. A boy and his three buddies set out in the summer of 1959 on a hike to find a dead body. Joined in Progress. (1:45) (R) (CC) AMC 9 a.m.
The Happy Years ››› (1950, Comedy) Dean Stockwell. Little John Humperdink Stover gets into circa-1900 mischief at Lawrenceville prep school. (2:00) (G) (CC)
TCM 9:30 a.m.
12 Wishes of Christmas (2011, Children’s) Elisa Donovan. A woman makes 12 wishes, and when the things she wished for start coming true, she discovers the consequences are not always easy to deal with. (2:00) (G) (CC)
LIFE 10 a.m.
The Secret Garden ››› (1949, Children’s) Margaret O’Brien. An English orphan finds the key to her bitter uncle’s magic garden, seen in color. (2:00) (G) (CC) TCM 11:30 a.m.
People Presents: Once Upon a Main Street (2020, Drama) Vanessa Lachey. A man and a woman take over the responsibilities for an annual holiday competition. (2:00) (NR) (CC)
LIFE 2 p.m.
Ray ››› (2004, Biography) Jamie Foxx. Blind since childhood, Ray Charles overcomes poverty, hardship and addiction and becomes an American music legend. (3:30) (PG-13) (CC) BET 2:30 p.m.
The Boy With Green Hair ››› (1948, Drama) Pat O’Brien. A young war orphan is subjected to ridicule after he awakens one morning to find his hair mysteriously turned green. (1:30) (NR) (CC)
TCM 3:30 p.m.