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  • Paul F. Keneally

COVID Law Changes as Omicron Surges

OSHA 100 Employee ETS Mandate for Vaccine or Weekly Test Reinstated,

NYS Mask Mandate Enforcement and NYS Extension of the Activation of the HERO Act


The federal Department of Labor’s Office of Safety and Health Administration’s (“OSHA”) Emergency Temporary Standard (“ETS”) mandate that employers with 100 or more employees must require full COVID vaccination or weekly testing of those employees has been stayed by the federal Fifth Circuit Court of Appeals since early November 2021 based on plaintiff’s arguments that OSHA lacked the power to issue the mandate. On Friday, December 17, 2021, the federal Sixth Circuit Court of Appeals, which had been assigned all the consolidated cases challenging the ETS mandate, vacated the Fifth Circuit’s stay, reinstating the ETS mandate, with a finding that the severity of the COVID epidemic was sufficient to authorize OSHA to act. OSHA has decided to extend the original time periods on the ETS mandate, so now affected employers must have their mandate policies (templates on the OSHA website) in place, begin tracking employee vaccination status, and require unvaccinated employees to wear masks (already required in New York State) by January 10, 2022. Then, those employers must have unvaccinated employees begin the weekly testing by February 9, 2022, or those employees will not be permitted to work. OSHA has indicated that it could issue citations to employers violating these provisions, and it is expected that any such enforcement will result from complaints made. OSHA is accepting comments about the ETS until January 4, 2022, on the information collection requirement and until January 19, 2022, regarding the remainder of the ETS. The case was immediately appealed to the U.S. Supreme Court so the ETS may get stayed again. Both federal and state officials have indicated that they are seriously considering changing the definition of “fully vaccinated” to include having received a booster shot.


Governor Hochul’s recent mask mandate for all indoor public spaces in New York State (unless person is alone in an enclosed space) is to be enforced on a local level by the respective counties. Initially, the Governor said she hoped businesses and individuals would voluntarily comply with the mandate, and that the enforcement of the mandate would be optional for the counties. Perhaps to the Governor’s surprise, the Western New York counties of Livingston, Ontario, Genesee, and Yates announced this week that they would not be enforcing the mask mandate. Monroe County’s statement on enforcement of the mandate was dubious of its ability to enforce but did say the State mask mandate was consistent with the Monroe County State of Emergency.


Finally, Governor Hochul has extended the activation of the HERO Act based on the continuing threat of COVID as a dangerous infectious disease until January 15, 2022. Accordingly, businesses must continue to enforce their HERO Acts plans adopted in 2021. It is likely that the HERO will be extended at least one more time past the January 15th date.

If you have any HERO Act, New York State mask mandate, or the OSHA ETs, or any other Labor & Employment Law questions or concerns, please contact the Underberg & Kessler attorney who regularly handles your legal matters or Paul F. Keneally, the author of this piece, here or at (585) 258-2882.

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