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On November 4, 2021, the Occupational Safety and Health Administration (OSHA) issued its Emergency Temporary Standard (ETS) applicable to employers of 100 or more employees. The ETS requires employers to adopt a soft vaccine mandate obligating employees to either get vaccinated or to undergo regular COVID-19 testing and to wear a face covering at work. OSHA expressly states that the ETS pre-empts all state or local laws that are contrary to the ETS requirements.

The ETS was originally set to be effective on the date of publication in the Federal Register (November 5, 2021), with employees who work for covered employers having until January 4, 2022 to get vaccinated or otherwise comply with the testing/masking requirements. However, on Saturday, November 6, 2021, the U.S. Court of Appeals for the Fifth Circuit issued an emergency stay of the ETS.  Hence, it is not currently enforceable with respect to workplaces located in the Fifth Circuit, which includes Louisiana, Mississippi, and Texas.  The stay may also extend to other states across the country, although that is not clear as the court did not specify whether its decision applied nationwide or only to the states under its jurisdiction. Regardless, other challenges to the rule have been filed around the country. Notwithstanding this emergency stay, we advise that employers that would be subject to the rule still consider preparing for enforcement while this matter is being litigated. More details on the rule, if it withstands the legal challenges, are below.

The ETS places the compliance and recordkeeping burden squarely on employers, and it leaves employers to decide whether employees may opt for testing instead of vaccination.  Under the ETS, employers may: (1) require all employees to be vaccinated (except those exempted for religious or medical reasons) l; or (2) require employees to be either vaccinated (except those exempted for religious or medical reasons) or wear a mask and be tested regularly.  The ETS also leaves it up to employers to decide whether the costs of testing and masks will be covered by the employer or by the employees who opt for testing/masking instead of vaccination.

MSHA

The new OSHA rule is not enforceable by the Mine Safety and Health Administration (MSHA) and does not apply to mines regulated by MSHA. MSHA continues to encourage miners to get vaccinated, and mine operators and organized labor are doing the same. MSHA has publicly stated (as recently as last week) that it does not currently intend to issue an emergency standard on COVID.


Continue Reading OSHA Issues COVID-19 Vaccine Mandate for Employers of 100 or More Employees, No Mandate from MSHA

Donna Pryor and Leah Kaiser have written an article on Safety Law Matters outlining OSHA’s new guidance on mitigating and preventing the spread of COVID-19 in the workplace. The latest OSHA guidance standardizes a new name for employer policies: “COVID-19 Prevention Program.” In the guidance, OSHA states employers should implement COVID-19 Prevention Programs in the

In a move to provide relief for taxpayers developing renewable energy projects and producing electricity from sources such as wind, biomass, geothermal, landfill gas, trash, and hydropower, the IRS has issued Notice 2020-41 which adds an extra year to the four year “Continuity Safe Harbor” for certain projects that began construction in 2016 or 2017.
Continue Reading IRS Extends Continuity Safe Harbor from 4 to 5 years.

Husch Blackwell’s Environmental practice group has collected the latest enforcement actions from various federal and state agencies tasked with regulating environmental policy in one convenient location, available here. The group will update this resource periodically as new guidance and rulemakings are handed down.

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If you have questions or concerns about environmental compliance

Shelter-in-place strategies to prevent the spread of the coronavirus (COVID-19) has disrupted the U.S. workplace. However, unlike a typical office environment, mines cannot operate without employees on property. In order to prepare for the outbreak, every employer should spend some time assessing the risk to their workforce and confirming whether or not they have reason

Due to its suddenness and severity, overnight the COVID-19 outbreak has rearranged the priorities of corporate legal departments. Things that were of top-of-list importance yesterday have likely been replaced by action items that were inconceivable just a few weeks ago. Additionally, the “all-hands-on-deck” approach to managing the crisis is likely to last for some time and perhaps longer than any of us could have imagined. There are going to be many legal issues of great strategic importance that simply won’t receive the attention they require; likewise, there will be day-to-day issues that could also be overlooked. Environmental monitoring and reporting requirements could be among those.
Continue Reading Environmental Compliance During COVID-19 Business Disruption