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OSHA Releases COVID-19 Vaccine Emergency Temporary Standard

Vaccine art graphic

By Phoebe B. Mitchell

The Occupational Safety and Health Administration released its highly anticipated Emergency Temporary Standard[1] (ETS) on November 4, 2021. The ETS requires employers with 100 or more employees to establish, implement and enforce a written mandatory COVID-19 vaccination policy. The Rule requires employers to:

  1. Establish, implement, and enforce a written mandatory vaccination policy;
  2. Determine the vaccination status of each employee and maintain a record of each employee’s vaccination status; and
  3. Provide support for employee vaccination, including paid time off.
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Here are key points from the ETS:

  • Employers with 100 or more employees are covered.
    • As for counting employees toward the threshold, OSHA’s FAQs say this:

For a single corporate entity with multiple locations, all employees at all locations are counted for purposes of the 100-employee threshold for coverage under this ETS. In a traditional franchisor-franchisee relationship in which each franchise location is independently owned and operated, the franchisor and franchisees would be separate entities for coverage purposes, such that the franchisor would only count “corporate” employees, and each franchisee would only count employees of that individual franchise. In other situations, two or more related entities may be regarded as a single employer for OSH Act purposes if they handle safety matters as one company, in which case the employees of all entities making up the integrated single employer must be counted.

  • Covered employers must establish, implement and enforce
    • a written mandatory vaccination policy; or
    • a written policy allowing employees to choose either:
      • to be fully vaccinated
      • or provide proof of regular testing for COVID-19 and wear a face covering at work.

Each employee must provide acceptable proof of vaccination status to their employer, which the employer must keep and treat as other medical records.

  • Employers must provide up to 4 hours of paid time off to allow an employee to become vaccinated.
  • Where employers adopt a policy that allows employees to remain unvaccinated, the employer must:
    • ensure that unvaccinated employees comply with COVID-19 testing procedures; and
    • ensure that unvaccinated employees wear a face covering when indoors (with limited exceptions).
  • Testing for unvaccinated employees:
    • Employees who report to work at least once every 7 days must:
      • be tested at least once every 7 days; and
      • provide documentation of the most recent test result to their employer no later than the 7th day following the last test result.
    • Employees who do not report to work at least once every 7 days must:
      • be tested within 7 days prior to returning to the workplace; and
      • provide documentation of the test result to the employer upon return to the workplace.
  • Employers are not required to pay for employee testing or face coverings.
  • Remote workers (work from home or work exclusively outdoors) are exempt from the ETS.
  • Employers must comply with most provisions of the Rule by December 4, 2021.

Employers should consult with their employment counsel for additional guidance on addressing concerns regarding the ETS. Phillips Murrah’s labor and employment attorneys continue to monitor developments to provide up-to-date advice to our clients.


For more information on this alert and its impact on your business, please call 405.606.4711 or email Phoebe B. Mitchell.

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Employer Alert: OSHA Emergency Temporary Standard is Imminent

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By Angela M. Buchanan

Last June, OSHA adopted an emergency temporary standard (“ETS”)—29 C.F.R. Part 1910, Subpart U, 86 Fed. Reg. 32376 (June 21, 2021)—that set forth numerous requirements for healthcare employers aimed at combatting the spread of COVID-19. On September 9, 2021, as part of his COVID Action Plan, President Biden directed OSHA to issue a new and broader ETS requiring all private employers with 100 or more workers to mandate COVID-19 vaccination or a weekly test for all employees. Since that time, OSHA has been working towards meeting President Biden’s directive, and, on October 12, 2021, OSHA sent a draft ETS requiring either vaccination or weekly testing of workers for employers with 100 or more employees to the White House’s regulatory office for approval. The White House is expected to review and approve the new ETS quickly.

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Angela M. Buchanan is a litigator who primarily focuses her practice on complex commercial litigation and disputes.

According to Ann Rosenthal, Senior Advisor at OSHA, the ETS will be published “in the coming weeks.” If the new ETS is like the healthcare ETS in its implementation schedule, the new standard will take effect shortly after its publication in the Federal Register. By way of comparison, the healthcare ETS has some provisions that became mandatory 15 days after publication, while compliance with others was required a month after publication. 29 C.F.R. § 1910.502(s)(2). The ETS can remain in effect for six months.

Violations of the new ETS would likely be considered either “serious” or “willful.” The current maximum penalty for a “serious” violation is $13,653 per violation. The current maximum penalty for a “willful” violation is $136,532. 29 C.F.R. § 1903.15(d), 86 Fed. Reg. 2964 (Jan. 14, 2021).

Preemptively, Governor Abbott responded to the expected ETS on October 11, 2021 by issuing Executive Order GA-40, stating that no entity in Texas can “compel” any individual, including any employee or consumer, to receive a COVID-19 vaccination who objects “for any reason of personal conscience, based on a religious belief, or for medical reasons, including prior recovery from COVID-19.”  The order establishes a maximum criminal penalty of $1,000.

Governor Abbot’s Order highlights the fact that the new ETS is likely to be challenged.  States, companies, and others will like challenge the ETS on the grounds that the required prerequisites for OSHA issuing an ETS are not met. Specifically, to make an ETS, OSHA must determine (A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (B) that such emergency standard is necessary to protect employees from such danger.” 29 U.S.C. § 655(c)(1). In the ten times OSHA has issued an ETS, the courts have fully vacated or stayed the ETS in four cases and partially vacated the ETS in one case.

Whether or not the ETS is eventually challenged, Companies still need to prepare for the new ETS mandates by proactively reviewing and updating their COVID-19 vaccination policies.  Phillips Murrah’s Labor and Employment attorneys regularly advise employers on complex issues relating to COVID-19 vaccination polices and OSHA standards.


For more information about how the information in this article may impact your business, please call 469.485.7341 or email By Angela M. Buchanan.

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OSHA issues COVID-19 Emergency Temporary Standard for healthcare employers

OSHA-Temp-Standard-GraphicBy Janet A. Hendrick and Phoebe B. Mitchell

On June 10, 2021, the Occupational Safety and Health Administration (OSHA) issued its long-awaited Emergency Temporary Standard (ETS) regarding mandatory safety standards for COVID-19 for healthcare employers pursuant to President Biden’s January 21, 2021 Executive Order. The ETS outlines what healthcare employers must do to protect healthcare workers from COVID-19. OSHA also issued voluntary guidelines for employers outside of the healthcare sector.

The rule is designed to protect workers who face the highest risk of contracting COVID-19 in the workplace – namely, those working in healthcare settings where suspected or confirmed COVID-19 patients may be treated. This includes employees in hospitals, nursing homes, and assisted living facilities; emergency responders; home healthcare workers; and employees in outpatient care facilities. The ETS exempts fully vaccinated workers from masking, distancing, and barrier requirements in well-defined areas where there is no reasonable expectation that any person with COVID-19 will be present.

Here are the key requirements of the ETS:

  • Written COVID-19 Plan: Healthcare employers with more than 10 employees must develop and implement a written plan that designates a safety coordinator who has the authority to ensure compliance with the ETS. The plan must include a workplace-specific hazard assessment and involve non-managerial employees in the hazard assessment and plan development. Additionally, the plan must include policies and procedures to minimize the risk of transmission of COVID-19 between employees.
  • Patient Screening and Management: Employers must limit and monitor points of entry to settings where direct COVID-19 patient care is provided. Employers must also screen and triage patients, clients, other visitors and non-employees.
  • Personal Protective Equipment (PPE): Employers must provide and ensure that each employee wears a facemask when indoors or in a vehicle with other employees for work purposes. Employers must provide and ensure that each employee working directly with suspected or confirmed COVID-19 patients use respirators and other PPE to prevent exposure to the virus.
  • Social Distancing: Employers must keep people six feet apart when indoors.
  • Physical barriers: Employers must install cleanable or disposable barriers at each work location in non-patient care areas where employees are not separated by six feet.
  • Vaccination: Employers must provide reasonable time and paid leave for vaccination and vaccine side effects.
  • No Cost: All requirements of the ETS must be implemented at no cost to the employees.

The rule will take effect when it is published in the Federal Register and healthcare employers must comply with the majority of the guidelines 14 days after publication.

Phillips Murrah’s labor and employment attorneys continue to monitor developments regarding COVID-19 rules in the workplace to provide up-to-date advice to our clients.


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Janet Hendrick is a Director and member of the Firm’s Labor and Employment Practice Group.

For more information on this alert and its impact on your business, please call 214.615.6391 or email me.

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OSHA issues updated guidance on workplace COVID-19 prevention programs

By Lauren Symcox Voth

The Occupational Safety and Health Administration (“OSHA”) published updated COVID-19 guidance for businesses on Friday, Jan. 29, 2021. The guidance, Protecting Workers:  Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace, (“Guidance”) outlines obligations for employers to comply with OSHA’s General Duty Clause during the pandemic and draws on previously published OSHA and Centers for Disease Control guidance.[1]  OSHA emphasizes the need for employers’ to plan and prepare to protect employees in the workplace from COVID-19.  The Guidance states that it does not create any new legal requirements for employers, but instead provides more detail on “existing mandatory safety and health standards.”  OSHA implies the Guidance may be used for purposes of enforcing employer compliance with COVID-19 prevention programs.

Stock image of industrial worker wearing a mask

(Adobe Stock)

OSHA recommends employers include employees in the development of company prevention programs.  OSHA takes a stronger stance on masking requirements for employees and anyone entering the workplace, physical distancing of employees and non-employees, installing barriers to protect employees, and improved ventilation to prevent the spread of COVID-19 in buildings.

OSHA considers the following to be essential to an effective COVID-19 prevention program.  Many of these elements have been in place for employers for several months.  Companies can benefit from documenting these elements to ensure a cohesive and complete COVID-19 prevention program.  A comprehensive COVID-19 Prevention Program should address the following elements:

  1. Assignment of a workplace coordinator, centralizing responsibility and communication from the company to employees regarding COVID-19 issues.
  2. A Company assessment of hazards in order to identify where and how workers might be exposed in the workplace.
  3. Identify the combination of measures that will limit the spread of COVID-19 in the workplace, which includes prioritizing what controls are most effective and least effective. For example, sending home people with a known exposure, physical distancing, improving ventilation, and cleaning routines.  The Guidance states face coverings should include “at least two layers of tightly woven fabric” and “Employers should provide face coverings to workers at no cost”.
  4. Consider protections for workers at higher risk for severe illness through supportive policies and practices. This element may overlap with an employer’s federal obligations under the Americans with Disabilities Act, Family Medical Leave Act, or state statutory obligations for accommodating disabled employees to protect them from the risk of contracting COVID-19.
  5. Establish a system for communicating effectively with workers in a language they understand. This includes communicating to employees about COVID-19 hazards and a method for employers to receive communications from employees, without fear of reprisal or discrimination.  The communication plan should allow employees to report illness, exposures, hazards, and closures related to COVID-19.
  6. Educate and train workers on company COVID-19 policies and procedures using accessible formats and in a language employees understand. This includes education on COVID-19, prevention policies, and making sure employees understand their rights to a safe and healthful work environment.
  7. Instruct workers who are infected or have potential exposure to stay home, isolate or quarantine to prevent or reduce the risk of spreading COVID-19. OSHA states that absences to prevent or reduce the spread of COVID-19 should be non-punitive.
  8. Minimize the negative impact of quarantine and isolation on workers. OSHA believes this can be achieved by employers permitting remote work or allowing employees to work in areas isolated from others.  OSHA also encourages implementation, or allowing the use of, paid sick leave policies for time off work.  In some states employees may be entitled to COVID-19 related leave.  Although the paid leave requirements in the Families First Coronavirus Response Act expired on December 31, 2020, employers may continue these leave policies and can find more information here [insert link to PM article].  Employers should continue to watch for further changes in federal and state paid leave requirements in 2021.
  9. Isolate, send home and encourage medical attention for employees who show symptoms.
  10. Perform enhanced cleaning and disinfection after people with suspected or confirmed COVID-19 have been in the facility. This may include closing areas, opening doors or windows, waiting to clean, and using disinfectants appropriate to clean COVID-19.
  11. Provide state and local guidance on screening and testing.
  12. Record and report COVID-19 infections and deaths on the company’s Form 300 logs according to OSHA standards. Outbreaks should also be reported to the local health department for contact tracing.  Employers are also prohibited from retaliating or discriminating against employees who speak out about unsafe working conditions or report infection or exposure to COVID-19 in the workplace.
  13. Implement protections from retaliation and set up an anonymous process for workers to voice concerns about COVID-19-related hazards.
  14. Make a COVID-19 vaccine or vaccination series available at no cost to all eligible employees.
  15. Employers should not distinguish between workers who are vaccinated and those who are not. This means that vaccinated employees must still comply with all COVID-19 protective policies including but not limited to physical distancing, masking, and other steps necessary to limit transmission.
  16. Apply all other applicable OSHA standards and requirements (i.e. respiratory protection, sanitation, etc.) to ensure that the company provides a safe and healthful work environment free from recognized hazards that can cause serious physical harm or death.

The Guidance provides additional detail for implementing these essential elements to a COVID-19 prevention program, including procedures for isolating infected or potentially infected employees, physical distancing guidelines, physical barrier guidelines, face coverings, cleaning and ventilation improvements.

This OSHA Guidance is likely the first of many updates to COVID-19 prevention procedures for employers in 2021.  Employers should review the full Guidance for more information on COVID-19 prevention programs and keep watch for more information from OSHA, the U.S. Department of Labor, and the Equal Employment Opportunity Commission regarding employer obligations.

[1] The General Duty Clause requires employers to provide employees with a work environment “free from recognized hazards that are causing or likely to cause death or serious physical harm.”  OSH Act of 1970, §5(a).


Attorney Lauren Symcox Voth

For more information on this alert and its impact on your business, please call 405.606.4740 or email me.

Phillips Murrah’s labor and employment attorneys continue to monitor developments to provide up-to-date advice to our clients during the current COVID-19 pandemic. Keep up with our ongoing COVID-19 resources, guidance and updates at our RESOURCE CENTER.

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Premise liability and Intellectual property: a sampling of holiday legal woes

As we find ourselves in the midst of another holiday season, it’s a good time to contemplate the joys this time of year brings. For many, that list includes extra time with loved ones, hearty food, and cozy pajamas.

Phillips Murrah litigation attorney Hillary Clifton discusses holiday legal hazards.

Hilary Hudson Clifton is a litigation attorney who represents individuals and both privately-held and public companies in a wide range of civil litigation matters. Click the photo to visit her attorney profile.

Hopefully, holiday-specific “legal woes” are less likely to come to mind. Nevertheless, holidays often have their own unique histories of legal issues that few would equate with the brotherly love and fa-la-la-falderal we expect during this “most wonderful time of the year.”

By this time, those who opened their homes and businesses on Halloween hopefully avoided any incidents associated with the spookier part of the season, like haunted house trip-and-falls or home-made cotton-ball sheep costume fires (see Ferlito v. Johnson & Johnson Products, Inc.).

Premises liability, however, remains a major concern for retailers preparing for the onslaught of holiday shoppers. Though most Black Friday retail giants are now well-acquainted with the safety risks associated with enormous sales and even bigger crowds, smaller retailers should be sure to beef up their safety protocol and brush up on premises liability concepts to keep the shopping season incident-free.

In addition to civil liability, failure to adequately cope with Black Friday madness can result in a business being cited by the Occupational Safety and Health Administration, whose “Crowd Management Safety Guidelines for Retailers” can be found online.

Less tangible injuries to intellectual property rights will often arise in connection with holiday-themed entertainment. One case that has been in the news recently involves the Netflix series The Chilling Adventures of Sabrina (which puts a darker twist on Sabrina the Teenage Witch), and The Satanic Temple’s claim that a statue featured in the show of the goat-headed Baphomet infringes on the Temple’s copyright of its own monument.

There’s also a fair chance that your favorite Christmas carol continues to generate income as someone’s intellectual property – and that someone would like to keep it that way (think the listless bachelor played by Hugh Grant in About A Boy). Of course, many holiday favorites, like Deck the Halls and Silent Night, have become part of the public domain and are perfect for spreading Christmas cheer. Others, like Frosty the Snowman, are still protected by copyright and require a license for public performances.

Finally, if you have any particularly overzealous family members, you might turn the threat of intellectual property litigation to your advantage, by cautioning that their makeshift mistletoe hats infringe on the “mistletoe supporting headband” patented in 1983 or the “Kiss Me” holiday cap patented in 1999.

Though I wouldn’t recommend Grinch-ing up your holiday parties by casually chatting about all the ways one might get sued before the new year, we should all keep in mind that no season is immune from the unfortunate reality of accidents, disagreements and liabilities – no matter how sincere our sentiments of peace on earth and goodwill toward man.


Gavel to Gavel appears in The Journal Record. This column was originally published in The Journal Record on November 21, 2018.

OSHA revises online whistleblower complaint form

Published on August 15, 2017

The Occupational Safety and Health Administration (OSHA) announced revisions its online whistleblower complaint form in July in order to help users file a complaint with the appropriate agency.

The updated form provides workers with another option for submitting retaliation complaints to the U.S. Department of Labor’s OSHA.

In the news release, OSHA announced:

The updated form guides individuals as they file a complaint through the process, providing essential questions at the beginning so they can better understand and exercise their rights under relevant laws. One significant improvement to the system includes pop-up boxes with information about various agencies for individuals who indicate that they have engaged in protected activity that may be addressed by an agency other than OSHA. The new form is available in English and Spanish.

“Workers who report unsafe conditions and wrongdoing have a range of legal protections from retaliation,” said Deputy Assistant Secretary of Labor for Occupational Safety and Health Loren Sweatt. “The revised online complaint form works to ensure whistleblowers file their complaints with the appropriate federal agency for prompt action.”

In addition to the online form, workers can file complaints by fax, mail, or hand-delivery. Complaints may also be filed by contacting the agency at (800) 321-6742 or by calling an OSHA regional or area office.

Read more about whistleblower rights here, and learn more about OSHA’s role in ensuring safe and healthful workplaces at www.osha.gov.

Disclaimer: This website post is intended for informational purposes only and does not constitute legal advice. Readers should not rely upon this information as a substitute for personal legal advice. If you have a legal concern, you should seek legal advice from an attorney.

Oklahoma Department of Labor offers free, confidential safety consultations

Are you concerned about your company’s OSHA compliance? Do you have concerns for the safety of your employees?

Safety consultants can be expensive, and during a time of tight financial resources, safety can take a back seat to other company priorities. However, in Oklahoma we have a cost-free option – the ODOL Safety Consultation program offered by the Oklahoma Department of Labor.

The goal of these inspections is compliance, not to levy fines. The ODOL will assess safety, evaluate the work site, and assist with training and compliance with the OSHA. Most importantly, if a concern is identified by the ODOL safety inspector, he or she will provide your company with suggestions about how to how to improve safety and obtain compliance with OSHA.

The company must agree to correct all hazards identified as serious within the established time frame. The consultations are not reported to OSHA. However, if an OSHA inspection should occur, there are requirements about company reporting regarding certain types of testing performed by the ODOL safety inspector.

Every company that is concerned with employee safety should consider these free, confidential, safety inspections. Identifying and correcting a problem can prevent workplace injuries and accidents, and can save the company penalties and fines in the future.

Learn more about these safety consultations by viewing the Oklahoma Department of Labor’s informational video: Workplace Safety Pays in Oklahoma

Disclaimer: Consultations are not a replacement for legal advice. If you have questions or need legal assistance for safety issues, please contact the law firm of Phillips Murrah at (405) 235-4100.