Legal Alert: OSHA ETS for COVID-19 Vaccine and Testing Stayed By 5th Circuit Court of Appeals

Legal Alert

On September 9, 2021, President Biden announced that he ordered OSHA to develop an emergency temporary standard (ETS) that would require private employers with 100 or more employees to mandate that employees either receive one of the three available COVID-19 vaccines or submit to weekly COVID-19 testing. On November 5, 2021, OSHA published its COVID-19 Vaccination and Testing Emergency Temporary Standard, which included a summaryfact sheet, and FAQs. The ETS was immediately challenged by a number of petitioners, including states and private companies, seeking to permanently enjoin enforcement of the ETS. On November 6, 2021, the United States Court of Appeals for the Fifth Circuit, temporarily stayed enforcement of the ETS pending briefing by the parties and expedited judicial review.

After completing its expedited review, on November 12, 2021, the 5th Circuit affirmed its initial stay, holding that petitioners met all four factors to establish the need for further stay, and ordered OSHA to take no further steps to implement or enforce the ETS pending adequate judicial review of the request for permanent injunction. The U.S. Department of Justice disagreed that an immediate stay was necessary given that a “multi-circuit lottery” will occur on or about November 16, after which all lawsuits challenging the ETS will be heard by one federal appeals court. Continue reading

Legal Alert: An Employer’s Guide to Preparing for the 2021 OSHA ETS Vaccine Mandate

Legal Alert

On September 9, 2021, President Biden announced that he ordered OSHA to develop an emergency temporary standard (ETS) requiring private employers with 100 or more employees to mandate that employees either receive one of the three available COVID-19 vaccines or submit to weekly COVID-19 testing. On November 4, 2021, OSHA released an unpublished version of the COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS).

Key dates for compliance:

  • December 5, 2021: unvaccinated employees must begin wearing masks or face coverings in the workplace
  • January 4, 2022: all covered employees must be fully vaccinated or undergo weekly COVID-19 testing

Employers who have been overwhelmed with the OSHA ETS mandate and what their next steps are can use this handy task list to guide them as we await a definitive court ruling on the mandate itself. Employers should begin this work now in the event a court of final decision does not invalidate the mandate, as some of the processes will require thoughtful consideration and budgeting of time and resources.

You can find expanded guidance by downloading our related task list to learn more about the steps that employers should take in response to this mandate.  Continue reading

Legal Alert: Biden Administration Announces Details of Two Major Vaccine Policies

Legal Alert

Click to view a recording of our webinar, Federal Vaccine Mandate Rules: What Employers Need to Know.

On November 4, 2021, the Department of Labor’s Occupational Safety and Health Administration (OSHA) and the Centers for Medicare & Medicaid Services (CMS) released long-awaited regulations regarding President Biden’s September 9, 2021, directive for mandatory COVID-19 vaccinations. Collectively, according to the White House, two-thirds of all US workers are now covered by the vaccination rules.

First, OSHA announced the details of the requirement for “Covered Employers” [1] with 100 or more employees [2] to ensure each of their workers is fully vaccinated or tests for COVID-19 on at least a weekly basis. The OSHA rule will require that these employers provide paid time for employees to get vaccinated. Additionally, covered employers must ensure all unvaccinated workers wear a face mask in the workplace. OSHA’s rule does not explicitly require employers to pay for testing. Continue reading

Federal Vaccine Mandate Rules: What Employers Need to Know

Alera Group Webinar

UPDATE: Click to view a recording of our webinar, Federal Vaccine Mandate Rules: What Employers Need to Know.

NEW WEBINAR Tuesday, November 9  |  2:00 pm – 3:00 pm CT

Join us for an overview of new OSHA and Centers for Medicare and Medicaid Services (CMS) rules, including:
• Whom these rules apply to;
• What the details of these rules mean for employers and employees;
• When these rules go into effect; and
• How employers will be held responsible.

This webinar is hosted by Alera Group’s team of employee benefits and property & casualty experts, and is relevant for all employers as they continue to face the COVID-19 pandemic and seek to be compliant.

CLICK HERE TO REGISTER for this complimentary webinar.

After Surfside, Heightened Focus on Condo Association Insurance

Condo Building

In a perfect world, condominium associations would hire a structural engineer to inspect their property every couple of years. The engineer would inform the association of any compromises to the building’s structural integrity or electrical system, and the association’s board of directors would authorize repairs in timely fashion, simultaneously managing risk and controlling costs —including the cost of condo association insurance.

In such a world, few outside of Greater Miami would ever have heard of Champlain Towers South, the 12-story condo building in Surfside, FL, that collapsed on June 24 of this year, killing 98 people.

Had the board of the Champlain Towers South Condominium Association adhered to an inspection schedule and followed inspectors’ advice, it’s likely the building would still be standing and those 98 victims would still be alive. The 2018 engineering report the board did commission — which warned of a “major error in the development of the original contract documents” prepared by the architectural firm that designed the 1981 building — would have been issued many years earlier, when necessary repairs would have been less extensive and far less costly. The repairs would have been completed shortly thereafter, and regular inspections and maintenance would have averted disaster.

But of course the world we live in is far from perfect.

July 10 report in USA Today details years of wrangling between the Champlain Towers South board, who had pushed for an assessment to pay for repairs, and the owners of the building’s condos, who had balked at the price. An April 9, 2021 letter from the board president to the condo owners reads in part, “A lot of work could have been done or planned for in years gone by. But this is where we are now.”

Six weeks after the date of the letter, one wing of the building came down in a deadly collapse. Within two weeks of the tragedy, victims’ families filed at least six lawsuits accusing the condo association of negligence. The insurance coverage the association had in place won’t come close to covering the damages.

In a July 1 emergency meeting with Miami-Dade County Circuit Judge Michael Hanzman, attorneys for the association said they were aware of a $30 million Property Insurance policy, as well as $18 million in Liability Insurance coverage. Based on a recording of the meeting posted by the Miami Herald, Claims Journal reports the judge as saying: “It looks like for the property damage claims and for the injury and death claims there’s going to be a total of $48 million, which will obviously be inadequate to compensate everyone fully for the extent of their losses. I don’t know whether there are any third-party claims. Maybe there are, maybe there aren’t. But we are dealing certainly with a limited pot as far as insurers go.”

Indeed. Losses from the Surfside condo collapse are estimated to total about $1 billion.

Condo Association Responsibilities and Coverage 

Composed of individual unit owners, condo associations are responsible for the management of the property where the condominiums are located. Most elect a board of directors — typically including three to seven members — to make decisions regarding expenses, routine maintenance, repairs and Property and Casualty Insurance, including Liability Insurance. The board operates under a set of association bylaws and a declaration that establishes which elements of a complex are to be covered under the association’s master policy and which features are the responsibility of individual unit owners. The master policy typically covers shared risks – i.e., the building (or buildings) itself and common areas, such as a pool, grounds and parking lot. In some instances, it also covers standard fixtures that originally came with the unit, such as cabinets and sinks. Typically, board decisions regarding major expenses are voted on by a quorum of the entire association. Continue reading

Cargo Insurance: The Shipper vs. Carrier Decision

Train Cargo

If you’re a manufacturer, distributor, wholesaler or retailer whose business involves the shipment of goods, your principal decision regarding Cargo Insurance shouldn’t be whether to purchase the coverage, but from whom — the shipper or an insurance carrier?

Protecting yourself with Cargo Insurance — also known as Goods in Transit Insurance — is always the right decision. Whether by land, sea or air, shipping is full of risk, with perils including theft, fire and more. All freight carriers are legally required to carry a minimum amount of Liability Insurance, but the coverage Liability Insurance provides is insufficient to fully protect you in the event of theft or cargo damage or loss resulting from natural disaster or accident. So, Cargo Insurance is a must.

Whether to obtain it through the shipper or an insurance company comes down to which option is more cost-efficient. Continue reading

CostWatch Newsletter For Third Quarter 2021

CostWatch Newsletter

The CostWatch provides areas of cost savings specifically related to business insurance. In this issue, we examine how your experience modifier rating is calculated and it’s impact on your WC costs. You’ll also learn why you should have your experience mod regularly audited.

Click here to read the latest issue!

Interested in putting AuditRate to work for you? Contact John Przybylski to learn more, JPrzybylski@AuditRate.com.

OSHA Launches Program to Protect High-risk Workers From COVID-19

OSHA NEP Program Video

On March 12, 2021, the Occupational Health and Safety Administration (OSHA) launched a National Emphasis Program (NEP) focusing its enforcement efforts on companies with the largest number of worker at serious risk of contracting COVID-19. The program includes an increase in COVID-related hazard assessments and unannounced OSHA visits within industries who have reported high exposure, fatalities or complaints related to the virus.

The video explains further. And, you can download this compliance bulletin which discusses the approach OSHA is taking against COVID-19 through the NEP.