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January 14, 2022

ACCSES Update

Happy Friday!  It seems like the weeks are going by faster and faster.  This week, we fielded quite a few questions about the OSHA vaccine or mask-and-test mandate, which was stayed by the U.S. Supreme Court yesterday afternoon.  Throughout the week, we were on alert waiting, waiting, waiting for the Court to issue its opinion and then, what do you know, they did it smack dab in the middle of our board meeting yesterday when we were not looking!  There is a life lesson in there somewhere.  As soon as we got off the board call and sent out a brief announcement, we spent time reviewing the Court’s opinion.    
 
Let’s take a quick look at what the Court said, and what happens next.  This case came up to the Supreme Court as an emergency appeal from the Court of Appeals for the Sixth Circuit’s decision to end the existing stay and allow the OSHA mandate to proceed during the course of the underlying litigation.  (Through a lottery, the Sixth Circuit was given the consolidated cases that had been filed in every federal appeals court jurisdiction.)  The Supreme Court’s decision to stay the mandate does not end the case, although it certainly weakens the government’s position. 
 
Right at the top of the Court’s opinion yesterday it states: “Applicants now seek emergency relief from this Court, arguing that OSHA’s mandate exceeds its statutory authority and is otherwise unlawful.  Agreeing that applicants are likely to prevail, we grant their applications and stay the rule.”  The basis for the Court’s thinking is that OSHA’s role is to “set workplace safety standards, not broad public health measures.”  This is a key paragraph in our reading of the opinion: “Although COVID–19 is a risk that occurs in many workplaces, it is not an occupational hazard in most.  COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather.  That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases.  Permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization.”
 
The Court goes on to state: “That is not to say OSHA lacks authority to regulate occupation-specific risks related to COVID–19.  Where the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are plainly permissible.  We do not doubt, for example, that OSHA could regulate researchers who work with the COVID–19 virus.  So too could OSHA regulate risks associated with working in particularly crowded or cramped environments.  But the danger present in such workplaces differs in both degree and kind from the everyday risk of contracting COVID–19 that all face.”  What the Court is saying here is that OSHA does have the authority to regulate to some extent with respect to COVID, but not so broadly that more than 80 million workers would be required to either be vaccinated or mask and be tested at their own expense simply because they work for an employer with more 100 or more employees.  This distinction between occupational safety and public health measures is at the core of the Court’s decision to stay the mandate.  It is possible we could see a narrower Emergency Temporary Standard at some point.
 
The case will now return to the Sixth Circuit to adjudicate the underlying case.  We have been asked what happens to the stay after the Sixth Circuit issues its decision in the underlying case.  The Supreme Court set out a plan in yesterday’s opinion.  The stay will remain in effect through the Sixth Circuit’s final decision AND through the time that Supreme Court decides whether to grant certiorari in any further appeal, if a writ is sought.  Under the rules of the Supreme Court, a petitioner has 90 days to seek a writ of certiorari, although we would anticipate any petition for a writ to be submitted promptly.  It takes four justices in favor of granting certiorari for the case to be accepted by the Court.  If the Court grants certiorari, the stay will remain in effect until the Supreme Court case is completed.  If the writ of certiorari is denied, the stay will terminate automatically and the final decision of the Sixth Circuit will stand.
 
It is worth taking a moment to read the per curiam opinion (the decision of the Court), as well as Justice Gorsuch’s concurrence, which Justices Alito and Thomas joined.  Dissents are always informative, and the dissent of Justices Breyer, Kagan and Sotomayor takes a strong position that OSHA has long had the power to regulate risks that fall both within and outside the workplace.  You can find them all as a single PDF here.   
 
Secretary of Labor, Martin Walsh, issued a statement following the release of the Court’s opinion, which includes the following: “We urge all employers to require workers to get vaccinated or tested weekly to most effectively fight this deadly virus in the workplace.  Employers are responsible for the safety of their workers on the job, and OSHA has comprehensive COVID-19 guidance to help them uphold their obligation.  Regardless of the ultimate outcome of these proceedings, OSHA will do everything in its existing authority to hold businesses accountable for protecting workers, including under the COVID-19 National Emphasis Program and General Duty Clause.”

We will continue to keep an eye on this case. 
 
***
 
Today, Secretary of Health and Human Services, Xavier Beccera renewed the Public Health Emergency effective January 16 through April 16, 2022.  January marks the second anniversary of the first Public Health Emergency, which was declared on January 31, 2020, effective January 27, 2020, by former Secretary Azar.  This marks the eighth time the Public Health Emergency has been renewed under COVID.  In accordance with the Families First Coronavirus Relief Act, states will continue to have a 6.2 percentage-point increase in their federal share of Medicaid spending (FMAP) for as long as the Public Health Emergency remains in effect. 
 
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The U.S. Department of Labor today announced a funding opportunity to support veterans at risk of or experiencing homelessness to return to the workforce.  “The awards are part of the VETS’ Homeless Veterans’ Reintegration Program that assists military veterans to overcome obstacles that have led them to homelessness, and to reenter the workforce as a means of reducing homelessness.  In the past year, the pandemic has made it more difficult for the homeless population of veterans.  HVRP awards grants on a competitive basis to state and local workforce investment boards, local public agencies and nonprofit organizations, tribal governments, and faith-based and community organizations.  Through the services provided, veterans experiencing homelessness may learn occupational skills, attain apprenticeships or on-the-job training opportunities and receive job search and placement assistance.”  Read more about this opportunity at the link.  
 
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The nice thing about holidays is the opportunity to catch up with old friends, and one of those old friends with whom we had the chance to talk right after New Years is Robin Kennedy, VP of Mission Advancement for Opportunities, Inc.  During our conversation, she reminded that A TEAM USA has its own YouTube Channel.  We have enjoyed watching A Team’s videos and seeing some of our other old friends!  Hi Yael, Dallas, and John!  We certainly are looking forward to getting back to Wisconsin to visit everyone in person soon! 
 
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On Tuesday, ACCSES had a terrific and well-attended webinar on web accessibility.  We want to thank Disability Advocate and DC trial attorney, Josh Basileand accessiBe's NonProfit Partnership Team Leader, Ilan Fisher, for leading an informative and very engaging session.  If you want to check out accessiBe’s work, visit the ACCSES website and click on the icon in the lower righthand corner.  We are grateful for accessiBe’s efforts in making our site accessible and we encourage everyone to do the same!  If you are interested in utilizing the accessiBe platform on your site, please contact Sarah Saar at ssaar@accses.org and she will put you in contact with them.  Let’s close the web accessibility gap!  
 
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The White House just announced it will begin shipping COVID test kits on January 19th.  On that date, “Americans will be able to order their tests online at COVIDTests.gov, and tests will typically ship within 7-12 days of ordering.”  Each order will be for up four test kits.  
 
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Look out DC: Sarah Saar is coming to town!  Next week is going to be busy for us as we have numerous appointments in DC to look at various venues for upcoming events and a lot to do at the office.  On Thursday, we have the honor of heading to New Jersey to attend the retirement dinner of our dear friend, Peggy Englebert, CEO of the Arc of Camden County.  If you are reading a tear or two in that sentence, you are right.  Peggy’s been wonderful to us and to ACCSES as a whole, and we will miss her.  Since we are traveling next Thursday and Friday, we will not put out an Update next Friday, barring something important to share, and will be back on Monday, January 24th.  Until then, have a happy weekend.  For those who are off for Dr. King’s birthday, we wish you a happy three-day weekend – and perhaps even some fun in the snow for all of us!  
 
Stay well, we need you, 
 
Kate and Sarah
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