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The U.S. Supreme Court Stays Enforcement of OSHA’s Nationwide Vaccine Mandate Because It Exceeds OSHA’s Authority

As Lizbeth West and James Kachmar wrote in previous blogs, here and here, the 6th Circuit Court of Appeals vacated the stay of OSHA’s vaccine-or-test mandate that applies to employers with more than 100 employees. Challengers of the mandate sought immediate review by the U.S. Supreme Court. The U.S. Supreme Court held oral arguments in the matter on an expedited basis on January 7, 2022, and just published an opinion today lambasting OSHA’s vaccine mandate and staying its enforcement.

California Department of Public Health Issues a New Statewide Indoor Mask Mandate

Due to the increase in COVID-19 infection numbers and the rising number of hospitalizations in recent weeks, the California Department of Public Health has issued a mandate requiring all individuals in California wear masks in all public indoor settings regardless of their vaccine status. The mandate is for a one month period from December 15, 2021 through January 15, 2022.

More information can be found at the CDPH website, here.

An Employee Has Requested a Religious Exemption to the Company Vaccine Mandate—What Now?

For those in the Sacramento area, you may have seen large “Destiny” signs overhanging State Route 65 north of Interstate 80. A news story last month suggested that this church is the place to go for COVID-19 vaccine exemption letters. Now that President Biden is planning to use the emergency powers of the Occupational Safety and Health Administration to mandate vaccination for an estimated 100 million employees, the issue is even more prominent.

How New Legislative Policy May Affect COVID-Related Lease Disputes

Over the last eighteen months, we have been forced to devote significant resources to interpreting how largely-forgotten legal doctrines apply to real estate contracts in a post-COVID world. These principles, including force majeure, frustration of purpose, and impossibility/impracticability, were generally overlooked in real estate transactions until life-altering global events required their use. Indeed, many of the cases interpreting these doctrines date back to the world wars that dominated the first half of the twentieth century. Modern practitioners often did not even address these concepts in their agreements.

Biden’s Path Out of the Pandemic: New COVID-19 Vaccine Mandates for Large Employers, Federal Contractors and Health Care Workers

Earlier, President Joe Biden announced vaccination requirements for the federal government workers but allowed them to “opt out” if they agreed to more stringent mitigation measures. He also implored private sector employers to encourage vaccination, and many employers began implementing mandatory vaccination plans or incentivizing employees to get vaccinated.

More On The FFCRA: Payroll Tax Credits And Period Of Non-Enforcement

As we told you on March 22, 2020, the Department of Treasury (DOT), Internal Revenue Service (IRS), and Department of Labor (DOL) announced plans to provide some relief for small and midsize employers in light of the recently passed Families First Coronavirus Response Act (FFCRA). In their announcement, it was also stated that employers may make immediate use of their tax deposits to pay employees taking emergency leave under the Emergency Family and Medical Leave Act (E-FMLA) or as Emergency Paid Sick Leave Act (E-PSLA). The DOL further announced that it would not bring any enforcement actions against employers for any violations within the first 30 days the law is in effect, provided the employer can show it is acting in good faith to comply with the new law.

Use Of Tax Deposits/Payroll Tax Credits:

Generally, when employers pay their employees, they are required to withhold various taxes, such as federal income, Social Security, and Medicare taxes. Employers are then required to deposit these taxes, along with the employer’s share of Social Security and Medicare taxes, with the IRS. The announcement stated that employers who pay qualifying emergency leave under the E-FMLA or E-PSLA, will be able to retain a portion of these payroll taxes, equal to the amount of emergency leave paid. If there are not sufficient payroll taxes to cover the cost of the emergency leave, the announcement stated that employers will be able file a request for an accelerated payment from the IRS.

The IRS provided the following examples:

  • If an eligible employer paid $5,000 in sick leave and is otherwise required to deposit $8,000 in payroll taxes, including taxes withheld from all its employees, the employer could use up to $5,000 of the $8,000 of taxes it was going to deposit for making qualified leave payments. The employer would only be required under the law to deposit the remaining $3,000 on its next regular deposit date.
  • If an eligible employer paid $10,000 in sick leave and was required to deposit $8,000 in taxes, the employer could use the entire $8,000 of taxes in order to make qualified leave payments and file a request for an accelerated credit for the remaining $2,000.

We expect the details of this new procedure to be announced sometime this week.

Non-Enforcement Period:

The announcement further clarified that the DOL was issuing a temporary non-enforcement period, and providing employers with 30-days to come into compliance with the Act. During this time, the DOL stated that it intends to provide employers with “compliance assistance.” In doing so, the DOL made clear that the brief period of adjustment was only available to employers acting “reasonably and in good faith.” Employers should use this time to work with legal counsel to make sure they are in compliance with the new Act.

We are watching for the issuance of more formal guidance, and we will provide an update at that time. If you have any questions in the meantime, please do not hesitate to reach out to any of our Labor and Employment attorneys for guidance.