On December 17, 2021, in a “Friday Night Surprise” the Sixth Circuit Court of Appeals lifted the Stay on the Federal Occupational Safety and Health Administration’s COVID-19 Emergency Temporary Standard (ETS). This seminal ETS applies to employers with 100 or more employees and requires that employees be either (1) vaccinated; or (2) weekly tested and fully masked if unvaccinated. While it is anticipated that the Supreme Court will ultimately decide whether the ETS stands, OSHA has already stated that they will begin enforcement of the ETS in January 2022. Specifically, OSHA will enforce all requirements except testing for unvaccinated employees beginning January 10, 2022, and enforcement related to testing will begin February 9, 2022.
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David Chidlaw
David B. Chidlaw is a partner in the firm's San Diego office where he specializes in labor and employment matters on behalf of management, employers and high net worth individuals.
Face-Covering Considerations for Retailers in a Post-Color Tiered California
California has issued new guidance for the use of face coverings that will take effect on June 15, 2021. The guidance impacts retailers and coincides with news that approximately 47% of Californians are now fully vaccinated. Although the new guidance, published by the California Department of Public Health (“CDPH”), will impact how retailers operate vis-à-vis public patrons, it does not impact employer-employee obligations. Those obligations are still governed by the Cal/OSHA COVID-19 Emergency Temporary Standards (ETS), and in some cases, the Cal/OSHA Aerosol Transmissible Diseases Standard. You can find our blog about these standards here.
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Cal/OSHA’s COVID-19 Emergency Standards Create New Complications and Costs for Retail Employers
California retailers facing a variety of complications from the ongoing COVID-19 pandemic now have one additional obstacle to tackle: compliance with new emergency standards from California’s Division of Occupational Safety and Health (“Cal/OSHA”). On November 19, 2020, the California Occupational Safety and Health Standards Board unanimously adopted emergency temporary standards on COVID-19 prevention in the workplace. Prior to the adoption of the emergency standards, general and industry-specific guidance from Cal/OSHA was advisory. However, the new emergency standards are binding and enforceable against nearly all California employers effective November 30, 2020. This article sets forth the basic requirements under the new standards. It then identifies some new complications and costs that retail employers in particular may face when attempting to comply.
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