A panel of infectious disease experts and public health specialists of the Veterans Administration who have been involved in the national COVID response discuss strategies to contain the spread of the Omicron variant and stay safe.
Sunday, December 19, 2021
CMS Announces 2022 Workers' Compensation Recovery Threshold to Remain at $750.00
Computation of Annual Recovery Thresholds for Certain Liability Insurance, No-Fault Insurance, and Workers' Compensation Settlements, Judgments, Awards, or Other Payments for 2022 were announced this week.
Saturday, December 18, 2021
In the Fog of COVID
The US Bureau of Labor Statistics (BLS) has released the 2020 summary of fatal occupational injuries. Unfortunately, it has ignored the COVID cases that are occupationally related.
OSHA Emergency Temporary COVID Standard Upheld by Federal Court of Appeals
The Sixth Circuit Court of Appeals reversed the Fifth Circuit Court of Appeals’ decision staying the Biden Administration’s Emergency Temporary Standard (ETS) of the Occupational Safety and Health Administration (OSHA). The split decision (2-1) of the three-judge panel upholds vaccine mandates against COVID infections for places of employment having 100 or more employees.
An appeal to the US Supreme court is anticipated.
Summary
“The COVID-19 pandemic has wreaked havoc across America, leading to the loss of over 800,000 lives, shutting down workplaces and jobs across the country, and threatening our economy. Throughout, American employees have been trying to survive financially and hoping to find a way to return to their jobs. Despite access to vaccines and better testing, however, the virus rages on, mutating into different variants, and posing new risks. Recognizing that the “old normal” is not going to return, employers and employees have sought new models for a workplace that will protect the safety and health of employees who earn their living there. In need of guidance on how to protect their employees from COVID-19 transmission while reopening business, employers turned to the Occupational Safety and Health Administration (OSHA or the Agency), the federal agency tasked with assuring a safe and healthful workplace. On November 5, 2021, OSHA issued an Emergency Temporary Standard (ETS or the standard) to protect the health of employees by mitigating spread of this historically unprecedented virus in the workplace. The ETS requires that employees be vaccinated or wear a protective face covering and take weekly tests but allows employers to choose the policy implementing those requirements that is best suited to their workplace. The next day, the U.S. Court of Appeals for the Fifth Circuit stayed the ETS pending judicial review, and it renewed that decision in an opinion issued on November 12. Under 28 U.S.C. § 2112(a)(3), petitions challenging the ETS—filed in Circuits across the nation—were consolidated into this court. Pursuant to our authority under 28 U.S.C. § 2112(a)(4), we DISSOLVE the stay issued by the Fifth Circuit…”
The Emergency Temporary Standard
“The ETS does not require anyone to be vaccinated. Rather, the ETS allows covered employers—employers with 100 or more employees—to determine for themselves how best to minimize the risk of contracting COVID-19 in their workplaces….. Employers have the option to require unvaccinated workers to wear a mask on the job and test for COVID-19 weekly…. They can also require those workers to do their jobs exclusively from home, and workers who work exclusively outdoors are exempt…. The employer—not OSHA—can require that its workers get vaccinated, something that countless employers across the country have already done…. Employers must also confirm their employees' vaccination status and keep records of that status…. Consistent with other OSHA standard penalties, employers who fail to follow the standard may be fined penalties up to $13,653 for each violation and up to $136,532 for each willful violation. 29 C.F.R. § 1903.15(d). “
Holding
1. OSHA has demonstrated the pervasive danger that COVID-19 poses to workersunvaccinated workers in particularin their workplaces
2. OSHA’s issuance of the ETS is not a transformative expansion of its regulatory power as OSHA has regulated workplace health and safety, including diseases, for decades.
3. There is little likelihood of success for the challenges against OSHA’s bases for issuing the ETS.
4. The factors regarding irreparable injury weigh in favor of the Government and the public interest.
Appeals to US Supreme Court
-BST Holding, LLC filed an Emergency Application for Relief "Whether OSHA’s private-employer mandate violates the Religious Freedom Restoration Act or the First Amendment"
-IN RE: MCP NO. 165, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, INTERIM FINAL RULE: COVID-19 VACCINATION AND TESTING; EMERGENCY TEMPORARY STANDARD 86 FED. REG. 61402, ISSUED ON NOVEMBER 4, 2021
US Supreme Court to hear oral argument on 7 Jan 2022.
Recommended Citation: Gelman, Jon L., OSHA Temporary Emergency COVID Standard Upheld by Federal Court of Appeals, Workers' Compensation Blog (Dec. 17, 2021), https://workers-compensation.blogspot.com/2021/12/osha-temporary-emergency-covid-standard.html
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Biden Administration Targets Occupational Exposure to PFAS 10/22/21
COVID Boosters: What Employees and Employers Need to Know 10/14/21
….
Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (Thomson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (Thomson-Reuters). For over 5 decades the Law Offices of Jon L Gelman 1.973.696.7900 jon@gelmans.com have been representing injured workers and their families who have suffered occupational accidents and illnesses.
Blog: Workers ' Compensation
Twitter: jongelman
LinkedIn: JonGelman
LinkedIn Group: Injured Workers Law & Advocacy Group
Author: "Workers' Compensation Law" Thomson-Reuters
Updated 12/23/2021
Friday, December 10, 2021
Workers’ Compensation Benefits for Long COVID
Workers’ Compensation Benefits are available for those workers who have been exposed to COVID at work and contract disease and remain ill from Long COVID.
Is the Workers' Compensation System Prepared for Omicron (Updated 12/10/21)
As this holiday season approaches, employers, insurance companies, and employees will be facing what may be the biggest COVID challenges of the year. The highly infectious disease variant Omicron detected initially in South Africa is spreading worldwide, including reported cases in the US.
Wednesday, December 8, 2021
Appellate Court Upholds the Biden Administration Vaccine Mandate for Florida Health Care Workers
Over the last several months, the Biden ministration has targeted over 100 million workers for mandatory vaccination or, in the alternative regular Covid testing. The three groups are Federal contractors, Health Care Workers, and companies employing 100 or more workers [OSHA Temporary Emergency Standard].
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