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Legal Updates for Employment Law

COVID-19 Update: New OSHA Regulatory Standard Mandating COVID-19 Vaccinations for Large Employers

Legal Updates for Employment Law – November 11, 2021

November 11, 2021

by Sharon M. O'Donnell

Key Compliance Dates: December 6, 2021; January 4, 2022           

In June of 2021, OSHA filed its plan and reasoning for a new temporary regulatory standard for large employers (i.e., those with 100 employees or more) for the purpose of enforcing the President’s policy of mandating COVID-19 vaccinations. On November 5, 2021, that new standard became effective.

In a nutshell, the Emergency Temporary Standard (ETS), found at 29 C.F.R. §1910, Subpart U, is broken down into five subparts, addressing:

  1. Vaccination, Testing and Face Coverings (1910.501),
  2. Healthcare (1910.502),
  3. Mini Respiratory Protection (1910.504),
  4. Severability (1910.506), and
  5. Incorporation by Reference (1910.509).

The section anticipated to have a ubiquitous reach is the first, relating to Vaccination, Testing and Face Coverings. Indeed, this section requires all employers subject to the ETS have in place a policy that:

  1. mandates vaccinations by either Pfizer, Moderna or Johnson & Johnson;
  2. exempts the mandate for approved reasons, including medical advice against it, sincerely held religious beliefs against it, or situations where it doesn’t apply at all—such as employees who do not come into contact with co-workers or customers, employees who work in an office space completely closed off from other office spaces, employees who work from home or employees who work outside; and
  3. requires that those employees exempt from the ETS wear face coverings at all times inside a building or in a car if on company business accompanying others. It further requires those employees to be tested for COVID-19 every seven days and turn those results into the employer, beginning on January 4, 2022.

The ETS also requires employers to track and maintain data and documentation on each employee regarding their COVID vaccination status so that if OSHA must do an investigation based upon a complaint, that information is available for inspection. Importantly, this will require employers to collect and maintain (in a separate confidential medical file) each employee’s proof of vaccination and every COVID-19 test result for those employees who are exempt from the mandate.

The ETS further protects “whistleblowers” and creates a standard for non-retaliation for anyone who makes a complaint to OSHA without regard to its merit.

The ETS requires the employer to separate a non-compliant employee from the workplace unless and until the employee provides a current, negative COVID-19 test result. Significantly, there is no requirement for the employer to maintain a non-compliant employee on its payroll, nor is there a requirement for the employer to pay for the COVID tests that all exempt employees are required to take beginning in January 2022.

While legal challenges to the ETS were fully expected and those lawsuits have already been filed, including one Court of Appeals staying the enforcement of the ETS until the challenge can be fully heard, employers should nonetheless put the necessary measures in place to comply with the ETS requirements now by creating all required policies, assuming that OSHA is successful in defeating the pending challenges. Failure to comply with this mandate could result in significant monetary penalties to employers if OSHA determines that an employer failed to have the required policy in place and also failed to enforce that policy with respect to all of its employees.

For more information about how to implement and enforce this ETS in your organization, please contact RKODonnell@mdwcg.com, Chair, Employment Law Practice Group, Marshall Dennehey.

 

Legal Updates for Employment Law – November 11, 2021, has been prepared for our readers by Marshall Dennehey Warner Coleman & Goggin. It is solely intended to provide information on recent legal developments, and is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We welcome the opportunity to provide such legal assistance as you require on this and other subjects. If you receive the alerts in error, please send a note to tamontemuro@mdwcg.com. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2021 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved

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On July 23, 2026, the Ohio Supreme Court issued a rare opinion on the binding effect of an appraisal award in a property insurance policy.  The Court in One Church held: A binding appraisal award will not be set aside unless an error is so palpably wrong that it undermines the intent of the agreement, such as corruption or gross mistake, not a mere error of judgment—To plead a claim of mistake with particularity as required by Civ.R. 9(B), facts alleged in a complaint must constitute the elements of mistake—Allegation that additional, hidden damage was discovered after appraisal award failed to state a claim of mistake that could justify setting aside binding appraisal.  The case arose out of a claim brought by One Church against its insurer, Brotherhood Mutual Insurance Company for roof damage from a storm. Pursuant to the terms of the insurance policy, the parties agreed to submit the matter to appraisal. The two appraisers inspected the building, and both appraisers agreed that the damages were $313,271.98. The insurer paid the agreed appraised amount.  Thereafter, the insured submitted a claim for an additional $206,663.09 in damages. The insured argued that these additional damages were not discovered until after the repairs began, and that they should be permitted to submit an additional claim, even though there had already been a binding appraisal of damages. The insurer refused to pay the additional damages, and the insured sued for breach of contract and bad faith.  In the trial court, the insurer moved to dismiss for failure to state a claim, arguing that the binding appraisal award barred any further claims. The insured took the position that additional hidden damages could not be discovered until after the repairs began, and therefore there was a mutual mistake. 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Since the complaint did not allege fraud or manifest mistake with sufficient particularity, something more than a mere error of judgment, the complaint was insufficient to state a claim.  The complaint in this case did not challenge the appraisal award. It pled that additional damages were discovered that were not apparent when the appraisal was done. It did not specify “who discovered the damages, how they were discovered, where they were found, why they were previously hidden, or why they rise to the level of a manifest mistake that the “appraiser would have corrected...had it been called to his attention”. Id at ¶22 citing Lakewood Mfg. Co. v. Home Ins. Co. of New York, 422 F.2d 796, 798 (6th Cir. 1970). Cases deciding the effect of appraisal awards are unusual. The Ohio Supreme Court’s decision in One Church relies primarily on 19th century case law for its conclusion. This emphasizes the fact that there is minimal case law deciding the effect of binding appraisal clauses in property insurance policies, and makes this case all the more significant. A lengthy dissent was written by Justice Fisher, who would have affirmed the Court of Appeals decision reversing and remanding the case for a decision on the merits. Of course, the decision works both ways, and an insurer dissatisfied with a binding appraisal award will likewise be without further recourse absent evidence of corruption, fraud, misfeasance, or manifest mistake, which must be pled with particularity. To constitute manifest mistake, “the mistake must be of such character that the arbitrator or appraiser would have corrected it had it been called to his attention.”  Lakewood Mfg. Co. v. Home Ins. 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