Good morning, happy Monday, and welcome to the second edition of my Monday Morning Briefing, which I did manage to get out during the morning! 

With the feedback and help from several of you from last week and some tweaking on my own end, I have added a few new names this week, so welcome to the newcomers.  I am also attaching the flyer to our upcoming webinar one more time, which is THIS WEDNESDAY, at 10:30am. 

I’m going to try to keep these Briefings scaled down to a few topics because I know you are all as busy as I am, so here goes:

Update on the OSHA ETS/Federal Vaccine-or Test Mandate

As most of you know, the Biden administration, through the Occupational Safety and Health Administration (OSHA), issued its Emergency Temporary Standard (ETS) governing the federal vaccine-or-test mandate for private employers with 100 or more employees late last year, which was due to go into effect in December, 2021.   It also issued mandates for government contractors and the healthcare industry, the latter by way of the Centers for Medicare and Medicaid Services (CMS).   All of those mandates have been challenged, in some form or fashion, the private employer mandate being enjoined by the Fifth Circuit initially, for a few weeks in December.  However, the case was ultimately assigned to the Sixth Circuit Court of Appeal, who ultimately dissolved the injunction and ruled that the mandate was lawful, for now.  At that point, the parties challenging the private employer mandate took the case up the US Supreme Court, where oral argument was heard last Friday, January 7, 2022. 

The initial deadlines contained in the ETS would have come due this coming week in January, 2022, but with the initial Fifth Circuit injunction, OSHA indicated it would allow employers an extra month, until February 9, 2022, to put all the policies in place and allow employees to become fully vaccinated.  The US Supreme Court had the option of issuing another injunction pending its oral argument, but did not do so.  Rather, it has allowed employers to languish in ambiguity for the past several weeks, pending its hearing and ultimate decision.

Now that SCOTUS has finally heard oral argument, many experts have opined that the Court is likely to strike down the mandate.   My analysis of the argument is that it is very hard to tell.  The Justices seem to have concerns about overreach, the amount of tests currently available, but also, the spread of this new variant.  Obviously, we won’t know for sure until the Court issues its opinion. 

For now, it appears the best course of action is that employers sit tight for the next few days.  We will thankfully, finally, know more very soon.   If indeed the Supreme Court blesses the OSHA ETS, we do have drafts of the policy, both the test option and the vaccine mandate version, ready to implement, for anyone who needs help with immediate implementation.  We can also assist any employers who might need to comply with the CMS version of these mandates. 

Reminder About Increasing COVID Cases, Changed Protocols and LA County Rules on Masks

I am sure I do not have to tell you about the increasing COVID surge happening here in Los Angeles County and everywhere else.  The case counts in LA County have been astronomical, although thankfully, the hospitalization rates, while climbing are still yet not tracking at quite the same rate.   As I addressed last week, do not forget that if you have three or more COVID exposure at one worksite, it is considered an OUTBREAK under Cal/OSHA standards, and you must implement special protocols within 48 hours.  Los Angeles County, California Public Health and the CDC have all changed their isolation and quarantine guidelines, as I mentioned last week, so double check all of these if you have any questions, and the protocols under CDC are slightly different from state and local protocols.   My team and I are here if you need, 24/7. 

More importantly, as I said last week, Los Angeles County has doubled down on its order to require employers to provide and require surgical style face coverings, as in N95 masks, for all employees who deal with the public or regularly come into contact with other employees, BY JANAURY 17.   Last week, this language was loosely buried in the updated health order, but they have now gone out of their way to publicize it separately with its own enforcement deadline.  Do what you can do get a hold of these masks and get them to your public facing employees.  I have to believe the LAPHD will be out to enforce this one, a week from today. 

Good News On PAGA

Finally, I am going to leave you with a little good news on this Monday.  Anyone who knows me knows how much I detest this statute known as the Private Attorney General Act (PAGA).   Well, we have a few challenges happening in 2022.   I am only going to tease you with them for now –  come to our webinar on Wednesday to hear more about the details.  Let’s just say that one involves a Proposition on the November Ballot (and we will need your help!).  One involves a legal challenge that will be heard in front of those same US Supreme Court Justices questioning the vaccine mandate.  And the third, and most recent, is another legal challenge being heard at the state level.   So hold good thoughts for 2022! 

So that’s it for my second edition.  I will try to keep these relatively short to respect your time.   As always, I would love any feedback.  Hope to “see” you on Wednesday. 

Stay safe; it’s a jungle out there (who besides me can remember the show where that line was said!)