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OSHA ETS “Vaccinate or Test” Rule for Large Employers Back in Effect

December 20, 2021


By Rachel D. Gebaide, Morey Raiskin & Abood Shebib

Late Friday, December 17, 2021, the Sixth Circuit Court of Appeals dissolved the stay of OSHA’s “vaccinate or test mandate” rule for large employers (ETS) in a 2-1 split ruling. Hence, the ETS (summary of general requirements) is no longer paused and is now in effect nationwide for all employers with 100 or more employees.

In response to the dissolution of the stay, OSHA announced it will not issue any citations prior to January 10, 2022, for noncompliance with any of the ETS’s requirements “so long as an employer is exercising reasonable, good faith efforts to come into compliance.”

Subject to the same condition, OSHA will not issue citations for noncompliance with the ETS’s testing requirements before February 9, 2022.

What does this mean for employers in Florida?

Large employers operating in Florida should take reasonable good faith efforts to comply with the ETS while bearing in mind that Florida’s new law requires that employers with a mandatory vaccine policy offer employees five different exemptions or risk investigation and fines by the Florida Department of Legal Affairs.

There are several strategies employers of 100 or more employees in Florida may consider, but there are no clear answers at present on how best to comply with both the ETS and Florida law, including who pays for testing. The prudent path continues to be consulting with legal counsel to determine the best way forward in this changing and, seemingly, conflicting regulatory environment.

Florida is one of several states challenging the ETS and has appealed the dissolution of the stay to the United States Supreme Court. The Supreme Court may act at any time, taking up the issue or denying review of the same.

Although matters remain in flux, as of now, the ETS is in effect, and employers should assess how they will comply with the ETS in light of Florida law prior to the revised January 10 and February 9 deadlines.

Please note this article only covers the OSHA ETS. There are other vaccine mandates employers may be subject to, including the Centers for Medicare & Medicaid Services’ interim final rule mandating COVID-19 vaccination for staff and employees of Medicare and Medicaid certified providers and suppliers (which CMS mandate is in also back in effect now for Florida and in 25 other states but remains stayed in 24 other states) and the Federal Contractor vaccine mandate (currently stayed nationwide).

Lowndes will continue to provide updates as legal developments occur and remains available to answer questions in the meantime. In the meantime, please contact any Lowndes Labor and Employment lawyer to discuss and strategize about the approach that your business will follow as you navigate this federal regulatory and state statutory maze.


This article is informational only. You should consult an attorney before acting or failing to act. The law may change rapidly and no warranty is given. LOWNDES DISCLAIMS ALL IMPLIED WARRANTIES AND WITHOUT LIMITATION, ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. ALL ARTICLES ARE PROVIDED AS IS AND WITH ALL FAULTS. Consult a Lowndes attorney if you wish to establish an attorney/client relationship.
Rachel

Rachel D. Gebaide is a member of the firm’s Executive Committee and chair of the Labor and Employment Law Group. She is an experienced employment litigator and adviser, counseling companies in the management of their human resources issues.


Rachel regularly represents employers in federal and state courts and before administrative agencies in defending against claims involving allegations of employment discrimination and violations of the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA), the Uniformed Services Employment and Reemployment Rights Act (USERRA), and other employment laws. She also defends discrimination claims arising under the Fair Housing Act.  

In addition to her litigation practice, Rachel drafts and reviews employee handbooks, employment agreements, non-competition agreements, separation agreements, and other personnel documents. She regularly advises clients regarding workplace issues and compliance with the FMLA, FLSA, WARN Act, the Affordable Care Act, and other employment laws. Rachel also has extensive experience in conducting independent investigations. 

A frequent speaker, Rachel often writes articles on developing issues in labor and employment law for client-focused publications, legal industry news outlets, and the firm’s employment law blog

Rachel is a member of the Labor and Employment Law Sections of the American Bar Association and the Federal Bar Association. She is also a member of the Orange County Bar Association, having served as Chair of the Labor and Employment Law Committee. Rachel is active in the Litigation and Employment Law Group of Meritas, a global alliance of independent law firms. 

She also serves as Executive Vice President of Congregation Ohev Shalom and Vice President, Legal of TOP Jewish Foundation. 

Morey

A Florida Supreme Court Certified Circuit Civil Mediator, Morey Raiskin works in the firm’s Labor & Employment Group.


Over the past 38 years, Morey has represented management of both large and small employers. He has successfully litigated cases in state and federal courts and represented clients in administrative proceedings involving the EEOC, DOL and FCHR. Morey also serves as an advisor to his clients, counseling them on virtually any workplace issue they may confront.

Morey develops non-compete and employment agreements, personnel policies, employment application forms, employee handbooks, and counsels clients on wage and hour, discrimination, WARN Act planning and union avoidance strategies. He litigates these same issues in state and federal courts or in administrative proceedings before the EEOC, U.S. Department of Labor or the Florida Commission on Human Relations.

Morey began practicing law in Las Vegas, Nevada, before moving to Orlando in 1984. In 1986, he accepted an in-house opportunity with a diversified publisher, Harcourt Brace Jovanovich, eventually becoming Lead Labor and Employment Counsel and Administrative Vice President of its wholly-owned subsidiary, Sea World. In 1990, Morey returned to private practice and has served in a myriad of roles, including as a shareholder and chair of the Labor and Employment Law Group at Lowndes from 1990—2012.


Abood

Abood Shebib is an attorney in the firm’s Labor and Employment Group. He primarily focuses his practice on representing employers in complex employment litigation matters, including matters involving the Fair Labor Standards Act (FLSA); Title VII of the Civil Rights Act of 1964; the Fair Credit Reporting Act (FCRA); the Americans with Disabilities Act (ADA); the Age Discrimination in Employment Act (ADEA); and the Family Medical Leave Act (FMLA). He works with a wide range of clients, from individuals and small businesses to Fortune 100 companies.

Abood has extensive experience handling all aspects of the employment litigation process in both state and federal court. In addition to preparing dispositive motions, including motions for summary judgment and motions to dismiss, taking and defending depositions, and arguing motions in court, he regularly conducts investigations and responds to charges of discrimination before the Employment Opportunity Commission (EEOC) and the Florida Commission on Human Relations (FCHR). Abood counsels clients on litigation avoidance strategies, as well as assisting with settlements and releases and the termination and discipline of employees.

With a background in commercial litigation, Abood also has experience advising clients on matters involving business litigation, trademark litigation and contract disputes in federal and state court.

Abood earned his undergraduate degree in Biology from the University of Arkansas and his law degree cum laude from the University of Florida Levin College of Law. While in law school, he served as a judicial intern to Magistrate Judge Monte C. Richardson of the U.S. District Court for the Middle District of Florida, Jacksonville Division and as a certified legal intern in the Office of the Public Defender for the Eighth Judicial Circuit. He was also an intern in the Office of the Vice President and General Counsel for the University of Florida. Shortly after graduating from law school, Abood interned with Judge James S. Moody in the U.S. District Court for the Middle District of Florida, Tampa Division. 

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