Legal updates

November 29, 2021

Much has recently been written about President Biden’s COVID-19 emergency temporary standard (“ETS”) for the American workplace. Unfortunately, many of those summaries neglected to address the application of ETS to public sector employers like states, counties, municipalities and school districts.

A series of recent developments have now clarified that President Biden’s workplace COVID standard will not apply to Illinois public sector employers any time soon. Rather, the Illinois Department of Labor recently announced that it will wait for the resolution of several federal challenges to OSHA’s ETS before extending its application to Illinois public sector employers. The following is a brief summary of how we have reached this point, and steps that public employers should now consider taking in preparation for the day when federal COVID standards may apply to public sector workplaces.

The Proposed OSHA ETS Never 
Directly Applied to Public Sector Employers

On November 4, 2021, the U.S. Occupational Safety and Health Administration (“OSHA”) issued an ETS to protect American workers from the spread of COVID-19 in the workplace. Under the standard, covered employers (with 100 or more employees) were required to develop, implement and enforce either (a) a mandatory COVID-19 vaccination policy; or (b) a policy allowing employees to opt for COVID testing in lieu of vaccinations. Employers choosing mandatory vaccination policies would have been required to allow employees up to four (4) hours of paid leave to receive vaccinations. Employers choosing testing policies would not have been required to pay for tests or offer employees paid time off to facilitate testing. Nevertheless, employers electing a testing option would have been required to ensure masks and a weekly testing regimen for those employees declining vaccination.

The ETS required employers to adopt one of these two policies by December 4, 2021, and ensure that (if electing a mandatory vaccination policy) all employees be fully vaccinated by January 4, 2022.

Unfortunately, many national media outlets neglected to clarify that this ETS did not directly apply to public sector employers. This is because OSHA has jurisdiction over only private sector employers. As explained below, public sector employers would have been indirectly subject to the ETS via their individual state’s adoption of an “OSHA State Plan.”

The Illinois Public Sector Likely Would Have Been Covered Due to Illinois’ State Plan

Many states have elected to adopt “State Plans” that are approved by OSHA. There are financial incentives for states to do so, including the ability to secure up to 50% federal funding for their state agency’s enforcement operations. Approximately twenty-eight states and territories have adopted some type of OSHA-approved “State Plan.” Twenty-two state plans apply to both private and public workplaces. Six others apply only to public sector workplaces. Illinois’s “State Plan” applies only to state and local government employers and employees.

As a condition of securing continued OSHA approval of a “State Plan” (which by extension will help ensure the continued flow of federal money), a state like Illinois must promise the federal government that it will promptly adopt an ETS that is identical to or “at least as effective as” the new standard within 30 days of promulgation by OSHA.

There never was a guarantee that the Illinois DOL would have adopted the very same ETS standards as promulgated by OSHA. As explained above, the Department could have adopted more stringent standards, including for example applying the standards to employers with less than 100 employees, or adopting a mandatory vaccination policy without a testing option. The other uncertainty was the compliance deadlines that the Illinois DOL would have adopted.

The Illinois DOL Declines to Implement the ETS
After A Federal Appellate Court Indefinitely Enjoins It

This uncertainty has proven largely academic in the wake of several events that have occurred in quick succession:

• On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit indefinitely stayed OSHA’s implementation and enforcement of its ETS for private sector employers. The Court specifically directed OSHA to “take no steps to implement or enforce” the ETS “until further court order.”

• On November 16, 2021, OSHA announced that it was indefinitely suspending “activities related to the implementation and enforcement of the ETA pending future developments in the litigation.” https:// www.osha.gov/coronavirus/ets2. That same day, the Sixth Circuit was selected by lottery to consolidate all of the nationwide litigation in a single setting.

• On November 17, 2021, the Illinois DOL announced on its website with little fanfare that due to these two events, it was not adopting the COVID ETS, but would “continue to post updates” on its website so that “public employers subject to Illinois OSHA standards are informed about any actions that may affect them.” https://www2.illinois.gov/idol/Pages/ default.aspx.

Next Steps?

In light of these recent developments, Illinois public employers are not required to comply with the OSHA ETS, at least for now. Nevertheless, Illinois public employers may still be required to develop employee vaccination and/or testing policies depending on how the federal litigation unfolds. In that respect, the federal government recently asked the Sixth Circuit to rescind the Fifth Circuit’s stay of the ETS. Depending on how that court rules, OSHA and the Illinois DOL may soon “restart” the process of implementing and enforcing the ETS. As a result, those employers who have already started to develop their own local workplace policies may want to continue to develop such plans in case they are required in the future.

Additionally, Illinois public employers with union-represented employees may need to bargain over the effects of implementing such COVID vaccination/testing policies (if or when the State ever mandates them). Recent private sector labor law guidance from the National Labor Relations Board suggests that there may be some effects bargaining obligations despite the legal mandate to promulgate COVID policies. See NLRB General Counsel, Responding to Inquiries Regarding Bargaining Obligations Under the Department of Labor’s Emergency Temporary Standard to Protect Workers from Coronavirus, GC 22-03 (November 10, 2021). Illinois’s two public sector labor boards presumably would follow this advice (absent an enforceable effects bargaining waiver). 

Finally, the decision by the Illinois DOL and OSHA to temporarily delay their implementation of the ETS does not affect the enforcement of a different set of federal emergency regulations that apply to eligible staff at health care facilities that participate in Medicare and Medicaid programs. In many ways, these emergency regulations, issued by the Center for Medicare and Medicaid Services (CMS), track the now-stayed OSHA ETS. A fair reading of those rules indicates the rules indicate that they likely do not apply to fire departments and ambulance crews. Unfortunately, like so many laws, rules, and regulations issued during the pandemic, the Medicare and Medicaid rules are not a model of clarity. Therefore, if a hospital system declares that paramedics licensed within their system are required to be vaccinated, agencies within that system would probably have little choice but to comply. Note that these federal Medicare rules do not affect a public employer’s existing obligations under Governor Pritzker’s healthcare worker executive order.

Illinois public employers are encouraged to consult legal counsel about these and other issues associated with the OSHA ETS and the emergency Medicare regulations.

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This CBS LLP Client Alert is prepared for general information purposes only. Summaries of recent court opinions and other legal developments are not necessarily inclusive of all the recent legal authority of which you should be aware when making your legal decisions. Thus, while every effort has been made to ensure accuracy, you should not act on the information contained herein without seeking more specific legal advice on the application and interpretation of these developments to any particular situation.

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