Canadian Union Challenges to Mandatory Proof of COVID-19 Vaccination Policies

Today we have insights from Norm Keith [1], a management-side employment and labor lawyer for KPMG.

The COVID-19 pandemic continues with over 5.1 million deaths worldwide and over 29,000 in Canada. [2] Tens of thousands of workers have contracted the deadly virus at work and filed workers’ compensation claims, including a number of worker deaths across Canada. COVID-19 is both an Occupational Health and Safety (“OHS”) as well as a Public Health crisis. Early responses of governments included lockdown regulations, physical distancing and masking mandates, and physical changes to workplaces.

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5th Circuit Continues Stay of OSHA ETS – What Do Employers Do Now?

As we reported a day after the November 5, 2021, effective date of OSHA’s ETS, the Fifth Circuit issued a temporary stay of the ETS pending further proceedings. On November 12, 2021, a three-judge panel of the Fifth Circuit continued the stay in a 22-page decision that contained numerous quotes and footnotes aggressively attacking the constitutionality of the ETS by stating, among other things, its promulgation grossly exceeds OSHA’s statutory authority. The Court further opined that the ETS is “fatally flawed” as its reach extends far beyond the Agency’s mission. The decision further noted, what many practitioners have already observed, that the ETS appears to be a “workaround” to impose a federal vaccine mandate.

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OSHA Publishes General Industry Emergency Temporary Standard

OSHA’s long-awaited general industry COVID-19 emergency temporary standard (“ETS”) was officially published today and became effective immediately for employers in those states without “state OSHA” plans. However, employers covered by federal OSHA still have until December 5, 2021, to comply with all the requirements, except the weekly testing requirements, which do not take effect until January 4, 2022. As expected, the ETS only applies to employers with 100 or more employees in the aggregate, including part-time employees. Generally speaking, covered employers will be required to do the following:

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