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IMLA COVID-19 Working Group

Amanda Karras

Thu, Jan 6, 2022 3:22 PM

Dear IMLA COVID-19 Working Group:

This is a reminder that for those in states with state approved OSHA plans that are subject to that particular vaccine mandate, OSHA has set certain dates for compliance that are quickly approaching:

The date for compliance with the non-testing portion of the requirement as 1/9. (It has said it will not issue citations before 1/10). These requirements include masking, record retention, employee notification, and any other requirements under the Emergency Temporary Standard (ETS) except for the testing requirement.
OSHA has set February 9th as the date for compliance with the testing portion of the mandate.

It is important to check with your state (if you are in a state with an OSHA approved state plan) to see whether your state is adopting the ETS. Some of these states are challenging the ETS. Minnesota, New Mexico, Michigan, and likely several other states have indicated they will adopt the OSHA ETS. Those states that are challenging the ETS may not implement the ETS by OSHA's deadline (I have heard OSHA is giving states until 1/24 but have not seen anything definitive on this). If a state does not implement the ETS's by OSHA's deadline, it seems likely that OSHA may begin the process to revoke that State's OSHA plan.
Finally, as a reminder, the Supreme Court will hear oral argument regarding the challenge to this vaccine mandate as well as the Medicare / Medicaid vaccine mandate tomorrow at 10 am. (The OSHA argument will be first and then the Medicare/Medicaid argument will immediately follow it). You can listen to tomorrow's oral arguments here (the link will show that there are arguments to listen to tomorrow): https://www.supremecourt.gov/oral_arguments/live.aspx. We should expect a decision in this case fairly quickly, but it could still take a couple of weeks (when there are dissents, it can take longer for decisions to come out because the Justices circulate the dissents and respond to them). I would think the Court would do everything it can to issue a decision before 2/9.

We will have a call on Tuesday, 1/11 at 3 pm eastern. You should have a calendar invite with the zoom information, but Caroline will send out a note with a reminder and the zoom link before the call.

Thank you,

Amanda

Amanda Kellar Karras
Executive Director / General Counsel
P: (202) 466-5424 x7116
Email: akarras@imla.org
[facebook icon]https://www.facebook.com/InternationalMunicipalLawyersAssociation/[twitter icon]https://twitter.com/imlalegal[linkedin icon]https://www.linkedin.com/company/international-municipal-lawyers-association-inc./

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IMLA's Mid-Year Seminar, April 8-11, 2022 in Washington DC!
IMLA's 87th Annual Conferencehttps://imla.org/annual-conference/, Oct. 19-23, 2022 in Portland, OR!

Dear IMLA COVID-19 Working Group: This is a reminder that for those in states with state approved OSHA plans that are subject to that particular vaccine mandate, OSHA has set certain dates for compliance that are quickly approaching: * The date for compliance with the non-testing portion of the requirement as 1/9. (It has said it will not issue citations before 1/10). These requirements include masking, record retention, employee notification, and any other requirements under the Emergency Temporary Standard (ETS) except for the testing requirement. * OSHA has set February 9th as the date for compliance with the testing portion of the mandate. It is important to check with your state (if you are in a state with an OSHA approved state plan) to see whether your state is adopting the ETS. Some of these states are challenging the ETS. Minnesota, New Mexico, Michigan, and likely several other states have indicated they will adopt the OSHA ETS. Those states that are challenging the ETS may not implement the ETS by OSHA's deadline (I have heard OSHA is giving states until 1/24 but have not seen anything definitive on this). If a state does not implement the ETS's by OSHA's deadline, it seems likely that OSHA may begin the process to revoke that State's OSHA plan. Finally, as a reminder, the Supreme Court will hear oral argument regarding the challenge to this vaccine mandate as well as the Medicare / Medicaid vaccine mandate tomorrow at 10 am. (The OSHA argument will be first and then the Medicare/Medicaid argument will immediately follow it). You can listen to tomorrow's oral arguments here (the link will show that there are arguments to listen to tomorrow): https://www.supremecourt.gov/oral_arguments/live.aspx. We should expect a decision in this case fairly quickly, but it could still take a couple of weeks (when there are dissents, it can take longer for decisions to come out because the Justices circulate the dissents and respond to them). I would think the Court would do everything it can to issue a decision before 2/9. We will have a call on Tuesday, 1/11 at 3 pm eastern. You should have a calendar invite with the zoom information, but Caroline will send out a note with a reminder and the zoom link before the call. Thank you, Amanda Amanda Kellar Karras Executive Director / General Counsel P: (202) 466-5424 x7116 Email: akarras@imla.org [facebook icon]<https://www.facebook.com/InternationalMunicipalLawyersAssociation/>[twitter icon]<https://twitter.com/imlalegal>[linkedin icon]<https://www.linkedin.com/company/international-municipal-lawyers-association-inc./> [logo]<https://imla.org/> 51 Monroe St. Suite 404 Rockville, MD, 20850 www.imla.org<http://www.imla.org/> Plan Ahead! IMLA's Mid-Year Seminar, April 8-11, 2022 in Washington DC! IMLA's 87th Annual Conference<https://imla.org/annual-conference/>, Oct. 19-23, 2022 in Portland, OR!

David Quealy

Thu, Jan 6, 2022 6:46 PM

Hi all,

I have a question regarding the implementation deadlines and some anecdotal support for Amanda's thought that OSHA is likely to initiate proceedings to revoke state plans if states do not adopt the ETS or analogous regulations.

Taking the anecdote first, Utah (a state plan state since 1985) chose not adopt any regulations in response to the Healthcare ETS that was issued prior to the large employer ETS. OSHA in turn issued the attached letter stating it was initiating the process of revoking Utah's state plan as a result. I have not heard anything about how that process is moving forward, but it was at a minimum a close shot across the bow lending support to Amanda's thinking.

With respect to upcoming compliance deadlines in the ETS, my reading of the OSH Act and approaching OSHA deadlines is that they do not apply directly to cities in "state plan states." More specifically, because the only regulatory authority OSHA has over municipalities is by way of the state agreeing to regulate municipalities through a state plan (which by its very nature supplants OSHA regulations--including ETS regulations--with state regulations that are "at least as effective" as OSHA's regulations), the dates that should concern municipalities in "state plan states" are the implementation deadlines set by the state OSH agency, not OSHA. See 29 USC § 652(5) (excluding political subdivisions from the definition of employer). If a state chooses not to implement the ETS or an analogous set of emergency regulations by the deadlines required by OSHA that seems to be a fight between the state and OSHA. But, irrespective of any ongoing fight between a state and OSHA, until the state plan is revoked a municipality is only legally bound to follow the regulations and deadlines imposed by its state OSH agency. If the state plan were to be fully revoked, the municipality would not be legally bound to anything vis-à-vis OHSA regulations. Am I missing something? That is not to say it isn't best practice to have something ready to go for a quick turnaround time (who likes late nights scrambling to draft policies).

Thanks for your thoughts.

--Dave

David M. Quealy
West Jordan City Attorney's Office
Senior Assistant City Attorney
8000 South Redwood Road
West Jordan, UT 84088
Telephone: (801) 569-5042
Email: david.quealy@westjordan.utah.gov mailto:david.quealy@westjordan.utah.gov
Facsimile: (801) 569-5149

CONFIDENTIALITY: This communication and any attachments thereto may contain private, privileged and/or confidential information and are for the sole use of the intended recipient. This communication may be governed by applicable statues and rules, including the Electronic Communications Privacy Act and other authority. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the intended recipient, please immediately reply to the sender and so advise, and immediately destroy and delete the communication. Thank you.

From: Amanda Karras akarras@imla.org
Sent: Thursday, January 6, 2022 8:22 AM
To: disasterrelief@lists.imla.org
Subject: [Disasterrelief] IMLA COVID-19 Working Group

CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

Dear IMLA COVID-19 Working Group:

This is a reminder that for those in states with state approved OSHA plans that are subject to that particular vaccine mandate, OSHA has set certain dates for compliance that are quickly approaching:

The date for compliance with the non-testing portion of the requirement as 1/9. (It has said it will not issue citations before 1/10). These requirements include masking, record retention, employee notification, and any other requirements under the Emergency Temporary Standard (ETS) except for the testing requirement.
OSHA has set February 9th as the date for compliance with the testing portion of the mandate.

We will have a call on Tuesday, 1/11 at 3 pm eastern. You should have a calendar invite with the zoom information, but Caroline will send out a note with a reminder and the zoom link before the call.

Thank you,

Amanda

Amanda Kellar Karras
Executive Director / General Counsel
P: (202) 466-5424 x7116
Email: akarras@imla.org mailto:akarras@imla.org
[facebook icon]https://www.facebook.com/InternationalMunicipalLawyersAssociation/[twitter icon]https://twitter.com/imlalegal[linkedin icon]https://www.linkedin.com/company/international-municipal-lawyers-association-inc./

Hi all, I have a question regarding the implementation deadlines and some anecdotal support for Amanda's thought that OSHA is likely to initiate proceedings to revoke state plans if states do not adopt the ETS or analogous regulations. Taking the anecdote first, Utah (a state plan state since 1985) chose not adopt any regulations in response to the Healthcare ETS that was issued prior to the large employer ETS. OSHA in turn issued the attached letter stating it was initiating the process of revoking Utah's state plan as a result. I have not heard anything about how that process is moving forward, but it was at a minimum a close shot across the bow lending support to Amanda's thinking. With respect to upcoming compliance deadlines in the ETS, my reading of the OSH Act and approaching OSHA deadlines is that they do not apply directly to cities in "state plan states." More specifically, because the only regulatory authority OSHA has over municipalities is by way of the state agreeing to regulate municipalities through a state plan (which by its very nature supplants OSHA regulations--including ETS regulations--with state regulations that are "at least as effective" as OSHA's regulations), the dates that should concern municipalities in "state plan states" are the implementation deadlines set by the state OSH agency, not OSHA. See 29 USC § 652(5) (excluding political subdivisions from the definition of employer). If a state chooses not to implement the ETS or an analogous set of emergency regulations by the deadlines required by OSHA that seems to be a fight between the state and OSHA. But, irrespective of any ongoing fight between a state and OSHA, until the state plan is revoked a municipality is only legally bound to follow the regulations and deadlines imposed by its state OSH agency. If the state plan were to be fully revoked, the municipality would not be legally bound to anything vis-à-vis OHSA regulations. Am I missing something? That is not to say it isn't best practice to have something ready to go for a quick turnaround time (who likes late nights scrambling to draft policies). Thanks for your thoughts. --Dave David M. Quealy West Jordan City Attorney's Office Senior Assistant City Attorney 8000 South Redwood Road West Jordan, UT 84088 Telephone: (801) 569-5042 Email: david.quealy@westjordan.utah.gov<mailto:david.quealy@westjordan.utah.gov> Facsimile: (801) 569-5149 CONFIDENTIALITY: This communication and any attachments thereto may contain private, privileged and/or confidential information and are for the sole use of the intended recipient. This communication may be governed by applicable statues and rules, including the Electronic Communications Privacy Act and other authority. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the intended recipient, please immediately reply to the sender and so advise, and immediately destroy and delete the communication. Thank you. From: Amanda Karras <akarras@imla.org> Sent: Thursday, January 6, 2022 8:22 AM To: disasterrelief@lists.imla.org Subject: [Disasterrelief] IMLA COVID-19 Working Group CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe. Dear IMLA COVID-19 Working Group: This is a reminder that for those in states with state approved OSHA plans that are subject to that particular vaccine mandate, OSHA has set certain dates for compliance that are quickly approaching: * The date for compliance with the non-testing portion of the requirement as 1/9. (It has said it will not issue citations before 1/10). These requirements include masking, record retention, employee notification, and any other requirements under the Emergency Temporary Standard (ETS) except for the testing requirement. * OSHA has set February 9th as the date for compliance with the testing portion of the mandate. It is important to check with your state (if you are in a state with an OSHA approved state plan) to see whether your state is adopting the ETS. Some of these states are challenging the ETS. Minnesota, New Mexico, Michigan, and likely several other states have indicated they will adopt the OSHA ETS. Those states that are challenging the ETS may not implement the ETS by OSHA's deadline (I have heard OSHA is giving states until 1/24 but have not seen anything definitive on this). If a state does not implement the ETS's by OSHA's deadline, it seems likely that OSHA may begin the process to revoke that State's OSHA plan. Finally, as a reminder, the Supreme Court will hear oral argument regarding the challenge to this vaccine mandate as well as the Medicare / Medicaid vaccine mandate tomorrow at 10 am. (The OSHA argument will be first and then the Medicare/Medicaid argument will immediately follow it). You can listen to tomorrow's oral arguments here (the link will show that there are arguments to listen to tomorrow): https://www.supremecourt.gov/oral_arguments/live.aspx. We should expect a decision in this case fairly quickly, but it could still take a couple of weeks (when there are dissents, it can take longer for decisions to come out because the Justices circulate the dissents and respond to them). I would think the Court would do everything it can to issue a decision before 2/9. We will have a call on Tuesday, 1/11 at 3 pm eastern. You should have a calendar invite with the zoom information, but Caroline will send out a note with a reminder and the zoom link before the call. Thank you, Amanda Amanda Kellar Karras Executive Director / General Counsel P: (202) 466-5424 x7116 Email: akarras@imla.org<mailto:akarras@imla.org> [facebook icon]<https://www.facebook.com/InternationalMunicipalLawyersAssociation/>[twitter icon]<https://twitter.com/imlalegal>[linkedin icon]<https://www.linkedin.com/company/international-municipal-lawyers-association-inc./> [logo]<https://imla.org/> 51 Monroe St. Suite 404 Rockville, MD, 20850 www.imla.org<http://www.imla.org/> Plan Ahead! IMLA's Mid-Year Seminar, April 8-11, 2022 in Washington DC! IMLA's 87th Annual Conference<https://imla.org/annual-conference/>, Oct. 19-23, 2022 in Portland, OR!