Supreme Court Halts Implementation of OSHA Covid-19 “Vaccine Or Test” Rule

On January 13, the U.S. Supreme Court granted a request for emergency relief concerning a Covid-19 “vaccine or test” rule that the Occupational Safety and Health Administration (OSHA) was planning to implement. In granting the stay, the Court halted – for now – what was known as the Emergency Temporary Standard (ETS) to be imposed upon companies with 100 or more employees.

The ETS mandated employers with at least 100 employees to require all members of their workforce to either obtain a Covid-19 vaccination or provide weekly proof of a negative Covid-19 test.

It should be noted that the Supreme Court granted emergency relief, which is not a final review of the OSHA rule. In other words, the decision doesn’t necessarily mean the rule will not ultimately be implemented. To the contrary, the decision only stays, or puts on hold, implementation of the rule until the Sixth Circuit Court of Appeals reviews it. After that, it may come back up to the Supreme Court for further consideration.

The 6-3 decision held that the plaintiffs challenging the law were likely to succeed on the merits of their arguments. Plaintiffs argued, and the Court agreed, that OSHA lacks the authority to implement the ETS. The majority determined that while OSHA has power to impose workplace safety rules, it cannot set broad public health policies. Although Covid-19 affects many workplaces, it is not specifically an occupational danger. Allowing OSHA to impose such a rule, the majority decided, would permit the agency to regulate “the hazards of daily living” – something Congress never intended.

Meanwhile, in a separate concurring opinion (that is, an opinion agreeing with the majority but for a different reason), three Justices contended that OSHA violated what’s known as the major questions doctrine. This rule assumes that when an administrative agency, such as OSHA, promulgates a rule that has major economic and social consequences, there must be clear statutory authority to do so. Put another way, the assumption is that Congress would not intend for OSHA to have such broad power unless that power is expressly stated in a statute. Such power is not contained in any statute concerning OSHA.

The three dissenting Justices took a different view. Not only did they believe the challengers were not likely to prevail on the merits of their claim, they held that OSHA is within its authority to require such an emergency standard to prevent workplace illness. Citing the serious danger of Covid-19 to millions of employees, the Justices concluded that OSHA has the power to impose the ETS.

Again, this emergency ruling is not necessarily the final word. Because the issue has been returned to the Sixth Circuit, with another possible review by the Supreme Court, the original rule could be upheld or OSHA might, in light of this decision, devise a more limited rule.

Employers should also be aware that state and local rules may require policies similar to OSHA’s ETS. The Supreme Court decision does not negate or halt those requirements.

Considering all of these factors, employers are advised to consult with knowledgeable legal counsel both as to current Covid-19 requirements and to prepare for possible future policies. At Gaffney Lewis, LLC, we have your business covered. Our employment law attorneys are at the forefront of the latest legal developments that affect the workplace. We’re prepared to advise your company on the best way to comply with laws and regulations concerning Covid-19. Give us a call today to learn more.



GaffneyLewis Partner, Amy Gaffney, Accepted into the American Board of Trial Advocates

GaffneyLewis partner Amy Gaffney has been accepted into the American Board of Trial Advocates (ABOTA).

Founded in 1958, ABOTA is a national association of experienced trial lawyers and judges. ABOTA and its members are dedicated to the preservation and promotion of the civil jury trial right provided by the Seventh Amendment to the U.S. Constitution. ABOTA membership consists of more than 7,600 lawyers, equally balanced between plaintiff and defense, and judges spread among 96 chapters in all 50 states and the District of Columbia.

“Amy’s invitation to become a member of the American Board of Trial Advocates is fantastic acknowledgement of her skills and advocacy as a trial lawyer,” said Robert Blain, managing partner of the firm’s Charleston office.

Gaffney, a founding partner working in the firm’s Charleston office, is a litigation attorney representing individuals and some companies throughout the state of South Carolina in employment and tort matters. Gaffney is also a certified mediator and has been involved in the resolution of hundreds of state and federal employment and tort cases. She is also a member of the National Academy of Distinguished Neutrals.



EEOC Guidance on Religious Exemption to COVID Vaccination Mandates

On October 25, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) issued updated technical assistance guidance on religious objections/exemptions to mandatory COVID-19 vaccination requirements by employers.  You can read the updated technical assistance guidance at “section L.”

The key updates to the technical assistance are summarized below:

  • Employees and applicants must inform their employers if they seek an exception
    to an employer’s COVID-19 vaccine requirement due to a sincerely held religious
    belief, practice, or observance, but employees and applicants and not required to
    use specific language like “religious exemption.”
  • Generally, under Title VII, employers should assume that a request for religious
    accommodation is based on a sincerely held religious belief.  If there is an
    objective basis for questioning either the religious nature or the sincerity of a
    particular belief, the employer would be justified in making a limited factual
    inquiry and seeking additional supporting information.
  • Title VII requires employers to consider requests for religious accommodations
    but does not protect social, political, or economic views, or personal preferences
    of employees who seek exceptions to a COVID-19 vaccination requirement.
  • Employers that demonstrate “undue hardship” are not required to accommodate
    an employee’s request for a religious accommodation.
  • Potential accommodations may include remote work or reassignment.

It is important to remember that it is unlawful for an employer to retaliate against an employee for requesting an accommodation based on a religious objection to vaccination.

The EEOC’s guidance answers COVID-19 questions only from the perspective of the EEO laws. Other federal, state, and local laws come into play regarding the COVID-19 pandemic for employers, employees, and applicants. Please let us know if you need assistance from the GAFFNEYLEWIS LLC employment law team regarding any COVID-19 questions, please reach out to us at (803) 790-8838.



Ways to support individuals who may be Impacted by a diagnosis of Breast Cancer

Throughout Breast Cancer Awareness Month, GaffneyLewis, LLC is highlighting ways that you can support individuals in your life who may be impacted by a diagnosis of breast cancer. Unfortunately, the statistics show that most of us know someone who has been diagnosed with breast cancer. Individuals who have walked this path have generously offered the following suggestions for ways you can actively support those who are fighting breast cancer.

1. Cards and Letters: It is always nice to receive a note or card from a friend. For cancer patients, letters can offer emotional support and are a way of communication that allows the patient to receive the support without feeling like they need to craft an immediate reply. Fielding calls and in-person visits can sometimes be difficult when you are feeling physically ill, but letters can provide much-needed comfort during those times and can be revisited long after the treatment concludes.

2. Help for Spouse and Family: Cancer does not only affect the patient, there is a ripple effect across the patient’s life. This diagnosis can transform a family member’s occupation into a full-time caretaker. Having emotional and tangible support for a patient’s family is essential for supporting both the cancer patient and their family. An example of this may be ordering dinner for the family. Another way you can support the patient’s family is by offering to update the family’s circle of friends and supporters on news or updates.

3. Prayers and Affirmations: Knowing that you are on someone’s mind or that people are praying for you or sending you good thoughts is a loving way of sending encouragement and comfort.

4. Soft hats, socks, and blankets: Providing tangible physical comfort items to a cancer patient is a great way to provide support and acknowledge a loved one’s physical needs. A soft blanket can make a hospital room feel more like home, provide comfort, and can be used after their treatment ends.

5. Be present: Oftentimes cancer treatment can feel isolating. The patient’s friends and family cannot relate to the specific struggles the patient faces and may feel awkward asking about it or even connecting to share details about their lives. This social disconnection can compound feelings of isolation. Having friends and family who consistently check in and are emotionally present in the struggle can make the experience better. When in doubt about how you can help someone with cancer, just ask.



GaffneyLewis is Going Pink for Breast Cancer Awareness

October 1, 2021 – October is Breast Cancer Awareness month and the law firm of GaffneyLewis is going pink to raise awareness and show support for survivors and honor those whose battle has ended.

According to the National Breast Cancer foundation, in 2021, an estimated 281,550 new cases of invasive breast cancer will be diagnosed in women in the U.S. as well as 49,290 new cases of non-invasive (in situ) breast cancer. It is estimated that 1 in 8 women in the United States will be diagnosed with breast cancer in her lifetime. Except for skin cancer, breast cancer is the most common cancer in American women and there are over 3.8 million breast cancer survivors in the United States.

“We all know someone who has breast cancer,” said founding partner Amy Gaffney.  “During October the firm will sponsor or participate in several fundraising events to benefit breast cancer research and to raise awareness of breast cancer. These are several ways we can demonstrate our solidarity and commitment to supporting our breast cancer warriors in-house and in our communities.”

To support the firm’s fundraising efforts click here to donate.



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