In a 2–1 decision, the US Sixth Circuit Court of Appeals dissolved the stay that had prevented implementation of the OSHA Emergency Temporary Standard (ETS) requiring COVID-19 vaccination or testing. Within hours of that decision, numerous emergency appeals were filed with the US Supreme Court asking that the stay be put back in place pending Supreme Court review. Justice Kavanaugh set a deadline of 4 p.m. Dec. 30 for the Biden administration to respond to the appeals.
On December 7, 2021, the US District Court for the Southern District of Georgia granted a preliminary injunction to temporarily halt the enforcement of the Biden administration’s vaccine mandate for government contractors nationwide. The court held that President Biden’s executive order likely exceeded his authority under the Federal Property and Administrative Services Act, 40 U.S.C. § 101 et seq. In his decision, Judge Baker stated the “direct impact” of President Biden’s executive order “goes beyond the administration and management of procurement and contracting; in its practical application … it operates as a regulation of public health.” The injunction prevents enforcement of the vaccine mandate for prime contractors and subcontractors on all covered contracts “in any state or territory of the United States of America.” Continue Reading Federal Court Blocks Vaccine Mandate for Government Contractors
Yesterday, November 18, 2021, Florida Governor Ron DeSantis signed legislation designed to give employees numerous COVID-19 vaccination exemptions to use to avoid any mandatory vaccination policy their employers seek to impose. Specifically, private employers must grant exemptions for: health or religious concerns; pregnancy or anticipated future pregnancy; past recovery from COVID-19; periodic testing or using PPE (i.e., masks). The private employer would bear the costs of the periodic testing and/or PPE.
Employers who violate these laws could be fined. Small businesses (defined as 99 employees or less) will face a $10,000 per employee violation. Medium and big businesses will face a $50,000 per employee violation. Government employers may not require COVID-19 vaccinations of anyone, including employees.
The legislation can be accessed here: House Bill 1B (2021B) – The Florida Senate (flsenate.gov). The law is effective as of November 18, 2021.
Yesterday, November, 17th, OSHA officially suspended all activities regarding the implementation and enforcement of the recent ETS establishing the COVID-19 vaccination/testing mandate for employers. OSHA did this in response to the current injunction and in recognition of the fact that the viability of the ETS will take some time to work its way through the court system and ultimately almost certainly before the US Supreme Court.
What’s the takeaway? For now, employers need not worry about the December 5, 2021 deadline (and likely the January 4, 2022 deadline as well). Employers are still free to act on their own but need not worry about complying with the OSHA ETS.
For more information on the COVID-19 Vaccination and Testing ETS, visit OSHA’s website.
Today, the Occupational Safety and Health Administration (OSHA) issued its much-anticipated emergency temporary standard (ETS) addressing COVID-19 vaccination and testing. Unlike other OSHA standards that count employees on an “establishment” basis, the ETS covers any private employer with 100 or more employees across the entire company. This broad definition is much more inclusive and will affect many more employers than many previous OSHA standards. Part-time, full-time, and remote employees are all included in the count. The new ETS applies to all employers with 100 or more employees except for those covered by the Executive Order on Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors and those covered by the Healthcare ETS.
The Louisiana Insurance Commissioner has issued Rule 22 for Hurricane Ida which allows policyholders an opportunity to mediate disputes with underwriters for claims up to $50,000. This is a streamlined approach where each side submits a position paper and meets with an assigned mediator at no cost to the insured. Notice of this program and relevant information is available on the Louisiana Department of Insurance website here.
Disputes arising in the Gulf of Mexico (GOM) following Hurricane Ida can be subject to three bodies of law: maritime law, federal law under the Outer Continental Shelf Lands Act (OCSLA), and state law, whether surrogate federal law under the OCSLA or within territorial waters. Jurisdiction for claims arising in the GOM is generally a federal question under 28 U.S.C. § 1331 subject to the saving to suitors clause in certain maritime-related claims. See 28 U.S.C. § 1333(1). Jurisdictional issues can be complicated and fact-based where maritime and non-maritime “services” are “mixed,” as discussed in Baker v. Hercules Offshore, Inc., 706 F.3d 680 (5th Cir. 2013).
The Outer Continental Shelf (OCS), as defined, consists of submerged lands, subsoil, and seabed in a specified zone up to 200 or more nautical miles seaward of the adjacent states’ jurisdiction. The OCSLA, 43 U.S.C. § 1331, et seq., regulating OCS operations extends federal jurisdiction to OCS operations and resources under 43 U.S.C. § 1349(b). Likewise, the OCSLA extends the benefits conferred by the Longshore and Harbor Workers Compensation Act (LHWCA) to employees working on the OCS.
As property owners shift their focus to repairing damages from Hurricane Ida, they should not lose their focus when it comes to the less apparent concerns that come with engaging contractors. Entities, like the Louisiana State Contractor Licensing Board, provide a certain level of protection to the consumer; however, caveat emptor (“let the buyer beware”) should still always be in the back of the minds of property owners as they navigate the path to recovery. The checklist below is provided to assist in this process.
Hurricane Ida brought strong winds, flooding, and mass destruction along the Louisiana coast. Although the Gulf South is no stranger to hard-hitting storms, each disaster brings a new set of obstacles for property owners and homeowners.
With the recovery process underway, many residents are still struggling to find the resources needed to rebuild or protect their investments. Information on possible funding, temporary housing, and other assistance is available from the Federal Emergency Management Agency (FEMA) and other organizations. But if you own a flood-impacted property, you may face other significant and perhaps more long-term questions such as: What can you do now to protect the value — including the resale value — of your property?
A key factor in protecting your property value will be how well you can demonstrate to prospective purchasers, appraisers, inspectors, lenders, insurers, and others that the storm-related damage was properly repaired or otherwise addressed and that you took the proper steps to limit post-storm damage.
Although laws differ throughout the Southeast, we suggest that the following steps be taken to help ensure you are protecting your property value:
- Step 1: Notify Your Insurance Company and FEMA — Involve your insurance and FEMA adjusters in the process as early as possible, ideally before conducting demolition, rebuilding, or remodeling work.
- Step 2: Prevent Further Damage — Take steps to prevent post-storm damage, such as patching or tarping damaged roofs, boarding up broken windows, and removing and storing salvageable items.
- Step 3: Document the Damage — Take photos or videos of the damage, and make a list of damaged items.
- Step 4: Make and Document the Repairs — Air out the property and remove damaged carpet, flooring, sheetrock, and other porous items. Follow the local ordinances, and obtain all required permits when making repairs. Keep a file that includes purchase orders or invoices, permits, agreements with contractors, and similar documents, and maintain a summary of the actions taken.
- Step 5: Perform Mold Assessment and Remediation — Consider obtaining a mold assessment and, if necessary, mold remediation. Be sure contractors who conduct mold remediation or apply biocides are properly licensed, and retain related documentation in your file.
- Step 6: Compose a Seller’s Disclosure — Disclose flood, mold, and other issues to prospective purchasers as required by state law and as a matter of good faith.
Additional tips and strategies can be found through the Jones Walker Disaster Preparedness & Recovery blog, including past articles Steps One, Two…Now What Do I Do? Protecting Your Property Value and After the Flood—Strategies for Protecting the Value of Your Home.
Further information is also available at the following regulatory agency links:
- Louisiana Department of Insurance: After the Storm Resources
- The Louisiana Real Estate Commission: Property Disclosure Exemption Form
- The Louisiana State Board of Home Inspectors: Licensed Home Inspectors
- Louisiana State Licensing Board for Contractors: Online Contractor Search
- Department of Agriculture and Forestry: Pesticide and Environmental Programs
- FEMA: Initial Restoration for Flooded Buildings (Hurricane Sandy Recovery Advisory)
- FEMA: Disasters and Assistance — Hurricane Ida
In a letter recently issued to Lafourche Parish, LA sales/use taxpayers, the Lafourche Parish local sales/use tax collector Amanda Granier explains that Lafourche Parish has now granted Lafourche Parish local sales/use tax filing extensions to certain dealers/taxpayers impacted by Hurricane Ida.
The Lafourche Parish sales/use tax office was “closed for the foreseeable future” due to Hurricane Ida.
The entire language of the collector’s letter, dated September 16, 2021, is found below:
“Due to the devastation caused by Hurricane Ida and the ongoing state of emergency, Lafourche Parish is granting extensions to certain dealers/taxpayers in impacted areas. Dealers/Taxpayers eligible for sales tax extensions include businesses who have had to close and are no longer able to operate or conduct business in the state and whose home or principal places of business where critical tax records are kept is one of the following parishes:
- Ascension, Lafourche, St. Helena, Terrebonne, Assumption, Livingston, St. James, Washington, East Baton Rouge, Orleans, St. John the Baptist, West Baton Rouge, East Feliciana, Plaquemines, St. Martin, West Feliciana, Iberia, Pointe Coupee, St. Mary, Iberville, St. Bernard, St. Tammany, Jefferson, St. Charles, and Tangipahoa.
For businesses that remained operating for all or part of the recovery time in the State of Louisiana but you are having difficulty complying with the deadlines, you may also be eligible for an extension and/or interest and penalty relief. A request for an extension or waiver must be made in writing or electronically to email@example.com or by USPS to Sales Tax Office, Lafourche Parish School Board, P. O. Box 997, Thibodaux, LA 70302. Any grant of waiver or extension is left to the sound discretion of the Collector based upon the individual circumstances of the dealer/taxpayer. Waivers and/or extensions do not apply for any tax that was due before August 26, 2021.”
Importantly, it should be noted that this letter from the Lafourche Parish collector does not apply to all parishes or all corresponding local sales/use taxes in Louisiana. Taxpayers should consult each local tax collector directly to confirm any local sales/use tax filing or payment extension.
For state sales/use tax purposes, the Louisiana Department of Revenue has also now issued Revenue Information Bulletin (RIB) 21-027, which grants an automatic state sales/use tax filing extension and corresponding penalty relief to taxpayers in certain Louisiana areas impacted by Hurricane Ida for August 2021 Louisiana state sales/use taxes that were due to be filed on or before September 20, 2021. Our separate Jones Walker State & Local blog post on the Department’s new RIB is found here.
The Jones Walker State & Local Tax Team will continue to provide additional updates regarding Hurricane Ida relief as they are issued.