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Labor and Employment

Mississippi Enacts New Medical Marijuana Law

February 7, 2022 by Brunini Law

By:  Kyle Williams and Chris Fontan

After months of political maneuvering, including a state-wide ballot initiative and Supreme Court challenge, Mississippi has joined 36 other states in enacting its own medical marijuana program.  On February 2, 2022, Governor Tate Reeves signed Senate Bill 2095, the Mississippi Medical Cannabis Act, (the “Act”) into law. The Act regulates the cultivation, processing, and dispensing of medical cannabis and authorizes physicians, certified nurse practitioners, physician’s assistants, and optometrists to certify patients for cannabis use—up to three ounces per month—to treat numerous “debilitating medical conditions.”

The Mississippi Department of Health will administer the program outlined within the Act and will enact regulations governing medical cannabis cultivators, processors, transporters, medical practitioners, and testing and research facilities. The Act tasks the Department of Revenue with regulating and licensure of cannabis dispensaries.

As more Mississippians are issued “written certifications” to obtain and use medical cannabis, employers will be forced to navigate this emerging area of the law.  As written, the Act contains many provisions favorable for the state’s employers.  For example, the 445-page Act in no way prohibits or limits an employer’s ability to establish or enforce a drug testing policy, nor does it require an employer to allow or accommodate the use of medical cannabis or to modify any job or working conditions of any employee who engages in the use of medical cannabis.  More specifically:

  • Employers are not prohibited from refusing to hire, discharging, disciplining, or otherwise taking adverse employment action against an individual with respect to terms, conditions, or privileges of employment as a result of that individual’s medical use of medical cannabis—regardless of the individual’s impairment or lack of impairment resulting from the medical use of medical cannabis.
  • Similarly, the Act does not create a private right of action by an employee against an employer for refusing to hire, discharging, disciplining or otherwise taking an adverse employment action against that employee with respect to terms, conditions or privileges or employment due to the individual’s medical use of medical cannabis.
  • Employers may discipline employees who use medical cannabis in the workplace or who work while under the influence of medical cannabis.

However, employers must comply with other state and federal laws that might be implicated.

The Act also amends Mississippi’s workers’ compensation laws to account for medical cannabis use.  Notably, the Act does not affect, alter or otherwise impact the workers’ compensation premium discount available to employers who establish a drug-free workplace program in accordance with Miss. Code §§ 71-3-201 et seq.  In addition, the Act does not impact an employer’s right to deny or establish legal defenses to the payment of workers’ compensation benefits to an employee on the basis of a positive drug test or refusal to submit to or cooperate with a drug test, as provided under Miss. Code §§ 71-3-7 and 71-3-121.

We will continue to monitor the implementation of Mississippi’s new medical cannabis program and the forthcoming regulations being promulgated by the Departments of Health and Revenue.  If you need Labor & Employment counsel, please contact any member of Brunini’s Labor & Employment Practice Group.

Related Attorneys

  • Christopher R. Fontan
  • Claire Williams

U.S. Supreme Court Clears Way for CMS’s Mandatory-Vaccination Rule to Proceed

January 13, 2022 by Brunini Law

By: Claire Williams and Chris Fontan

On January 13, 2022—the same day that it blocked a Vaccination-or-Testing mandate issued by the Occupational Safety and Health Administration (“OSHA”)—the U.S. Supreme Court cleared the way for enforcement by the Centers for Medicare & Medicaid Services (“CMS”) of its rule requiring COVID-19 vaccinations for more than 10 million healthcare workers.

In a 5-4 opinion, the Court lifted two previous injunctions blocking CMS’s rule that was issued in November 2021 by the Secretary of Health and Human Services (“HHS”). The CMS Rule provides that, in order to receive Medicare and Medicaid funding, participating healthcare facilities must ensure that their staff are fully vaccinated against COVID-19, unless otherwise exempt for medical or religious reasons.  A facility’s failure to comply with the CMS Rule can lead to monetary penalties, denial of payment for new admissions, and ultimately termination of participation in the Medicaid and Medicare programs.

In its per curiam opinion, the Court held that that the CMS Rule falls within the authorities that Congress conferred upon the HHS Secretary.  In so holding, the Court stated that “the Secretary did not exceed his statutory authority in requiring that, in order to remain eligible for Medicare and Medicaid dollars, the facilities covered by the interim rule must ensure that their employees be vaccinated against COVID-19.” Justice Thomas authored a dissenting opinion, which was joined by Justices Alito, Gorsuch, and Barrett.

With the injunctions lifted, covered healthcare facilities need to ensure they are in compliance with the CMS Rule, including CMS’s most recent guidance. Most pressingly, covered healthcare workers must have at least one COVID-19 vaccine by January 27, and a second vaccine by February 28.

Notably, the Court’s opinion is on the district court injunctions, and not on the merits of each case.  Two separate court challenges to the CMS vaccine mandate remain.  With its ruling, the Supreme Court stayed the earlier injunctions pending disposition of the appeals in the United States Courts of Appeals for the Eight and Fifth Circuit.

We are monitoring these events and will update you accordingly.  In the meantime, feel free to contact any member of Brunini’s Labor & Employment Practice Group if you wish to discuss.

 

 

 

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  • Christopher R. Fontan
  • Claire Williams

U.S. Supreme Court Blocks OSHA’s Vaccine-or-Test Rule for Large Employers

January 13, 2022 by Brunini Law

By: Claire Williams and Chris Fontan

On January 13, 2022, the Supreme Court of the United States re-instated a nationwide stay of the Occupational Safety and Health Administration’s (“OSHA”) COVID-19 Vaccination and Testing Emergency Temporary Standard (“ETS”).  The Court’s stay of OSHA’s ETS prevents OSHA from enforcing the standard, which officially went into effect on January 10, 2022.

In a per curiam opinion, the Court held that emergency relief from the ETS is warranted because the applicants, including 27 states, are likely to prevail on their argument that OSHA’s ETS exceeds its statutory authority and is unlawful.  The Court reasoned that “[a]lthough Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly.”  The Court went on to state that “requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category.”

Justice Gorsuch authored a concurring opinion, which was joined by Justices Thomas, and Alito.  Justices Breyer, Sotomayor and Kagan dissented.

The Supreme Court’s stay remains in place pending further litigation and a ruling on the merits of the petitions for review in the United States Court of Appeals for the Sixth Circuit.  However, given the limited shelf-life of the ETS itself and the language used by the majority of the Justices, many feel that the Supreme Court’s decision on the stay ultimately seals the fate of the ETS.   We are monitoring these events and will update you accordingly.  In the meantime, feel free to contact any member of Brunini’s Labor & Employment Practice Group if you wish to discuss.

 

 

 

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  • Christopher R. Fontan
  • Claire Williams

U.S. Supreme Court Hears Oral Argument on OSHA’s Vaccine-or-Test Rule for Large Employers

January 7, 2022 by Brunini Law

By: Chris Fontan

In a rather unprecedented proceeding, all nine justices of the U.S. Supreme Court heard oral arguments on Friday, January 7, 2022 concerning legal challenges to the Occupational Safety and Health Administration’s (“OSHA”) COVID-19 Vaccination and Testing Emergency Temporary Standard (“ETS”).  Specifically, challengers comprised of private entities and state attorneys general argue that OSHA overstepped its statutory authority when it issued the ETS requiring employers with at least 100 employees to mandate either vaccinations, or masking and weekly testing for workers.

As previously reported, a three-judge panel of the United States Court of Appeals for the Sixth Circuit previously dissolved a stay of the ETS, allowing OSHA to proceed with enforcement of the ETS’ mandates.  Within several hours of that decision, multiple parties, including 27 states, filed emergency motions with the Supreme Court seeking to block the ETS and requesting an emergency stay of its enforcement.  Justice Brett Kavanaugh took the rather unprecedented action of not unilaterally deciding the immediate stay issue himself, but instead referring this stay request to the full Court.

While it is always dangerous to predict the actions of the Court based solely on the questions asked during oral argument, many legal commentators initially speculate that the conservative majority of the Court seems primed to ultimately enjoin the ETS on the basis that it is too broad and not clearly authorized by Congress.  Decisions in the cases are expected soon, perhaps as early as over the weekend or by Monday, January 10. Timing is, of course, important as the first requirements of the ETS—everything but the weekly testing requirements—are set to take effect Monday, January 10, unless the Court acts before then to block them. The remaining testing requirements are slated to take effect Wednesday, February 9, 2022.

We are monitoring these events and will keep you posted.  In the meantime, feel free to contact any member of Brunini’s Labor & Employment Practice Group if you wish to discuss.

 

 

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  • Christopher R. Fontan

UPDATE: Federal Appeals Court Lifts Stay on OSHA’s Vaccine-or-Test Rule for Large Employers

December 20, 2021 by Brunini Law

By:  Chris Fontan

Late Friday, December 17, 2021, a three judge panel of the Sixth Circuit Court of Appeals dissolved a previously issued stay of the Occupational Safety and Health Administration’s (“OSHA”) COVID-19 Vaccination and Testing Emergency Temporary Standard (“ETS”).  Shortly after the ruling by the Sixth Circuit, OSHA posted a notice on its website, adjusting its previously established deadlines for compliance with the ETS.

In a 2-1 split vote, the three judge panel determined that, in light of the continued spread of COVID-19 variants, OSHA “must be able to respond to dangers as they evolve.” Judge Jane B. Stanch, an appointee President Barack Obama, authored the opinion. Judge Julia Smith Gibbons, an appointee of President George W. Bush, sided with Judge Stanch.  Judge Joan Larsen, an appointee of President Donald Trump, dissented, noting employees are exposed to COVID-19 even while not working and OSHA had not established there was “grave danger” in the workplace or the ETS requirements would correct that.

OSHA quickly recognized the victory, while at the same time acknowledging the uncertainty that the litigation has caused. As a result, OSHA notified the public of new compliance dates concerning the ETS.  According to a new notice on the agency’s website, OSHA announced that it was “exercising enforcement discretion with respect to the compliance dates of the” mandate. OSHA stated that “it will not issue citations for noncompliance with any requirements of the [mandate] before January 10 and will not issue citations for noncompliance with the [mandate’s] testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.” OSHA also promised to “work closely with the regulated community to provide compliance assistance.”

Based on this announcement, the current deadlines for the OSHA ETS include:

  • Immediately: Covered employers must start taking good faith efforts to come into compliance with the ETS.
  • January 10, 2022: New deadline for covered employers to:
    • Have written COVID-19 Vaccine-or-Testing Policy prepared describing the requirements with regard to vaccinations and testing
    • Provide specific information about vaccines and the ETS requirements to employees
    • Determine the vaccination status of each employee (and keeping records related to vaccination status)
    • Start requiring masking of unvaccinated employees
    • Provide PTO for employees to get vaccinated
  • February 9, 2022: New deadline for covered employers to:
    • Start requiring weekly COVID-19 testing for unvaccinated employees (and keeping records related to weekly testing)

Within several hours of the decision, multiple parties, including 27 states, filed emergency motions with the U.S. Supreme Court to block the ETS and requested an emergency stay of its enforcement. Those applications will be reviewed by Justice Brett Kavanaugh, who is assigned to hear petitions from the Sixth Circuit Court of Appeals. At this point, the Supreme Court has several options, including: granting the petitioners’ applications and staying the ETS pending review of the entire Court; granting the petitioners’ application but, given OSHA’s decision to delay compliance dates, not issuing a stay and simply referring the applications to the full Court for a decision; or taking no action on the applications pending review of the full Court.

Although it is always difficult to predict how quickly a ruling might come, experts predict that the Supreme Court will most likely take action in advance of January 10, 2022, to give employers some certainty. Employers are encouraged to continue to monitor developments with the ETS and pending litigation involving its implementation and to contact their labor and employment counsel for additional information concerning these developments.  If you need Labor & Employment counsel, please contact any member of Brunini’s Labor & Employment Practice Group.

 

 

 

 

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  • Christopher R. Fontan

OSHA’s Emergency Temporary Standard is Here (Maybe) – Now What?

November 11, 2021 by Brunini Law

By:  Chris Fontan

On November 4, 2021, the Occupational Safety and Health Administration (“OSHA”) released its anticipated, or controversial, emergency temporary standard (“ETS”) aimed at curbing further spread of COVID-19. The ETS—which is a “vaccinate-or-test” workplace mandate—applies to most employers with 100 or more employees (“Employers”).  Under the ETS, Employers must either mandate COVID vaccinations or require masking combined with proof of negative COVID tests on a weekly basis as a condition of employment.

All requirements of the ETS, other than testing for unvaccinated employees, are effective 30 days after publication of the ETS in the Federal Register (i.e., Dec. 5, 2021). Thus, the ETS requires Employers to ensure all unvaccinated employees working “in person” begin wearing masks by Dec. 5, 2021, and start providing negative COVID-19 tests on a weekly basis beginning Jan. 4, 2022.

As expected, numerous legal challenges to the ETS have been and will continue to be made in the coming weeks. As we previously reported, the U.S. Court of Appeals for the Fifth Circuit recently enacted a nationwide injunction, temporarily preventing OSHA from enforcing the ETS.  While the future of the ETS remains uncertain due to this and similar legal challenges, it will take weeks of planning for employers to comply with the ETS’s deadlines. With that in mind, employers should continue preparing for the ETS as if it is going to take effect while litigation continues.  As a result, employers must continue to prepare for potential compliance with the ETS.

Overview of the ETS’ Requirements

According to a “Fact Sheet” prepared by OSHA, the ETS requires Employers to do the following:

  • Implement a mandatory, written COVID-19 vaccination policy, with or without an exception allowing employees to instead undergo weekly COVID-19 testing (beginning Jan. 4, 2022) and wear a face covering at the workplace (beginning Dec. 5, 2021).
  • Obtain proof of the vaccination status of each employee.
  • Create a roster/list showing the vaccination status of each employee.
  • Securely maintain both the proof of vaccination status and the roster/list.
  • Provide employees with up to four (4) hours of paid time off to receive each primary vaccination injection/dose.
  • Provide employees with a “reasonable amount” of paid sick leave to recover from any side effects experienced following each primary vaccination injection/dose.
  • Ensure that each employee who is not fully vaccinated is tested at least weekly for COVID-19 (if in the workplace at least once a week) or within seven days before returning to work (if away from the workplace for a week or longer).
  • Ensure that each employee who is not fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes (subject to specific, limited situations).
  • Require employees to promptly provide notice when they receive a positive COVID-19 test (or are diagnosed with COVID-19). Immediately remove any employee, regardless of vaccination status, from the workplace who receives a positive COVID-19 test/is diagnosed with COVID-19, and keep the employee out of the workplace until the return-to-work criteria are met.
  • Provide each employee with information they can understand about: the requirements of the ETS and workplace policies and procedures established to implement the ETS, the CDC document “Key Things to Know About COVID-19 Vaccines”, information about protections against retaliation and discrimination, and information about laws that provide for criminal penalties for knowingly supplying false statements or documentation.
  • Report work-related COVID-19 fatalities to OSHA within 8 hours of the employer learning about them, and work-related COVID-19 in-patient hospitalizations within 24 hours of learning about them.
  • Make certain records available to an employee or an employee representative for examination and copying.

Steps for Complying with the ETS

  1. Determine if your organization is covered by the ETS.

 

  1. Determine vaccination status of your organization’s employees.

 

  1. Evaluate available options and logistics for testing—even Employer’s opting for full vaccination mandate will need testing options as a potential “reasonable accommodation” for claimed disabilities and/or religious exemptions.

 

  1. Assess potential impact of paid-time-off and other new requirements.

 

  1. Determine your organization’s approach and draft a written policy.

 

  1. Craft necessary and required employee communications.

 

  1. Establish your organization’s reporting and recordkeeping protocols.

Employers are encouraged to take these steps, to continue to monitor developments with the ETS and pending litigation involving its implementation and to contact their labor and employment counsel for additional information concerning these developments.  If you need Labor & Employment counsel, please contact any member of Brunini’s Labor & Employment Practice Group.

 

 

 

 

 

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  • Christopher R. Fontan

UPDATE: Fifth Circuit Court of Appeals Issues Stay Blocking OSHA’s Vaccinate-or-Test Rule….For Now

November 8, 2021 by Brunini Law

By:  Chris Fontan

Less than 2 days after the Occupational Safety and Health Administration (“OSHA”) finally released its anticipated, and highly controversial, emergency temporary standard (“ETS”) addressing COVID-19 testing and vaccination, a federal court has thrown up a huge road block in the path of its full implementation.  The Court’s injunction temporarily prevents OSHA from enforcing its controversial new ETS.

 As we previously reported, on November 4, 2021, OSHA unveiled its controversial ETS, which essentially requires employers with 100 or more employees to either mandate COVID vaccinations or proof of negative COVID tests on a weekly basis as a condition of employment. As predicted, soon after President Biden initially instructed OSHA to begin working on plans for the proposed rule, the ETS was met with immediate legal challenges. Most notably, a number of parties, including several businesses, advocacy groups, and the states of Texas, Louisiana, Mississippi, South Carolina, and Utah filed a motion for a preliminary and a permanent injunction with the U.S. Court of Appeals for the Fifth Circuit.

On Saturday, November 6, 2021, the Fifth Circuit granted their “emergency motion” and entered a preliminary stay barring enforcement of the ETS. Citing “grave statutory and constitutional issues,” the Court stayed the ETS until further notice by the Court. In addition, the Court ordered the parties to submit further briefing about the validity of the ETS by November 8th and 9th respectively. The stay order issued on November 6th is not a final ruling on the validity of the ETS, but will halt its implementation at least temporarily.

Louisiana Attorney General Jeff Landry said the action stops Democratic President Joe Biden “from moving forward with his unlawful overreach.” Louisiana was one of the states bringing the lawsuit seeking to stop enforcement of the ETS.  “This is a great victory for the American people out there. Never before has the federal government tried in such a forceful way to get between the choices of an American citizen and their doctor. To me that’s the heart of the entire issue,” he said.  Meanwhile, Solicitor of Labor Seema Nanda said the U.S. Department of Labor is “confident in its legal authority” to issue the rule, stating that the OSH Act of 1970 “explicitly gives OSHA the authority to act quickly in an emergency” and OSHA is “fully prepared to defend [the ETS] in court.”

The future of the ETS remains uncertain due to this and other pending legal challenges. While the final result is unknown, it will take weeks of planning for employers to comply with the ETS’s deadlines. With that in mind, employers should continue preparing for the ETS as if it is going to take effect while litigation continues.

 

 

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  • Christopher R. Fontan

OSHA Finally Releases COVID Vaccine/Testing Mandate for Employers

November 6, 2021 by Brunini Law

By: Chris Fontan

On Thursday, November 4, 2021, the Occupational Health and Safety Administration (“OSHA”) finally released its anticipated, and already controversial, emergency temporary standard (“ETS”) addressing COVID-19 testing and vaccination. The ETS—which is a “mandate-or-test” workplace vaccine rule—applies to most employers with 100 or more employees (“Employers”).  The ETS does not apply to: (1) employers who are covered by the recently-released Executive Order mandating vaccinations for federal employees and employees of federal contractors; (2) healthcare employers covered by the prior healthcare ETS; and/or (3) employees working from home or exclusively outdoors. After weeks of speculating over what was likely to be in the proposed rule, Employers are now left with the task of navigating their way through this new mandate.

Here is a general overview of the OSHA ETS:

100-Employee Threshold. In general, the OSHA ETS applies to employers with 100 or more employees. 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. The ETS also expressly covers part-time, full-time, and remote employees in its “100 employee” count.

Vaccination Requirement. The ETS requires Employers develop, implement, and enforce a written, mandatory COVID-19 vaccination policy.  To meet this requirement, the policy must require vaccination of all employees, other than those for whom a vaccine is medically contraindicated, for whom a medical necessity requires a delay in vaccination, or who are otherwise entitled to a reasonable accommodation under the Americans with Disabilities Act or Title VII of the Civil Rights Act because they have a disability or sincerely held religious beliefs that conflict with the vaccination requirement.

As part of the required policy, the ETS requires Employers determine the vaccination status of each employee, obtain acceptable proof of vaccination, maintain records of each employee’s vaccination status, and maintain a roster of each employee’s vaccination status. At the same time, Employers must remain cognizant of their obligations to maintain the confidentiality of employee medical information, since OSHA and the EEOC view vaccine-related information like all employee medical information.

Testing Alternative. Consistent with President Biden’s initial announcement, the OSHA ETS also includes an exception from the vaccine mandate for Employers that instead establish, implement, and enforce a written policy allowing employees who are not fully vaccinated to elect to undergo weekly COVID-19 testing and wear a face covering at the workplace.  Those employees who are not fully vaccinated (including those entitled to reasonable accommodations for religious or medical reasons) must be tested for COVID-19 at least weekly (if in the workplace at least once a week) or within 7 days before returning to work (if away from the workplace for a week or longer).

Employers must maintain a record of each test result. Employees who fail to provide documentation of a COVID test result must be excluded from the workplace until they provide such test result. Notably, the ETS excuses any employees who test positive or are diagnosed with COVID-19 from these testing requirements for 90 days following their positive test or diagnosis.

Face coverings. The ETS requires Employers to ensure that each employee who is not fully vaccinated (thus, those opting for the testing alternative) wears a face covering when indoors or when occupying a vehicle with another person for work purposes, except in certain limited circumstances, including: when an employee is alone in a room with floor to ceiling walls and a closed door; for a limited time while the employee is eating or drinking at the workplace, or for identification purposes in compliance with safety and security requirements; when an employee is wearing a respirator or facemask; or where the employer can show that the use of face coverings is infeasible or creates a greater hazard that would excuse compliance. In addition, employers must not prevent any employee, regardless of vaccination status, from voluntarily wearing a face covering unless it creates a serious workplace hazard (e.g., interfering with the safe operation of equipment).

Paid Leave.  As part of the ETS, Employers are required to provide employees “reasonable time”—defined as up to four hours of paid time, to receive each vaccination dose, including travel time.  Employers may not require use of accrued sick or personal time for these purposes. In addition, Employers must provide reasonable time and paid sick leave to recover from side effects experienced following each dose. Employers may require use of accrued sick or personal time for these purposes.

Positive COVID-19 tests and employee removal. The ETS also mandates that Employers require their employees to promptly provide notice when they receive a positive COVID-19 test or are diagnosed with COVID-19, regardless of vaccination status. Once such notice is provided, the Employer must immediately remove the employee from the workplace, regardless of vaccination status and the worker must remain removed from workplace until they meet specified criteria for returning to work. Importantly—the ETS does not require that Employers provide paid leave to employees who are removed from the workplace because of a COVID-19 positive result or diagnosis, though paid time may be required by other laws, or by a collective bargaining agreement.

Notice to employees. Under the ETS, Employers are required to provide employees the following (in an appropriate language and at a literacy level):

  • Information about the requirements of the ETS and workplace policies and procedures established to implement the ETS;
  • The CDC document “Key Things to Know About COVID-19 Vaccines”;
  • Information about protections against retaliation and discrimination; and
  • Information about laws that provide for criminal penalties for knowingly supplying false statements or documentation.

Interaction with OSHA and Recordkeeping. As an OSHA requirement, the ETS requires Employers to report work-related COVID-19 fatalities to OSHA within 8 hours of learning about them, and work-related COVID-19 in-patient hospitalizations within 24 hours of the employer learning about the hospitalization. In addition, at OSHA’s request, an Employer will have four (4) business hours to provide its policy on vaccination/testing, and until the end of the next business day to provide all other records that must be maintained (i.e. proof of each employee’s vaccination status or test results as required by the ETS).  Employees also have the ability to request their own vaccination or testing records, and may submit requests for the aggregate number of fully vaccinated employees in the workplace along with the total number of employees at that workplace.

Key Dates.  Employers are required to be in compliance with the bulk of the ETS by Sunday, December 5, 2021.  Employers must begin obtaining weekly test results for employees who have not received all doses required for primary vaccination no later than Tuesday, January 4, 2022.

 

Related Attorneys

  • Christopher R. Fontan

President Biden Issues Executive Order Encouraging Federal Limits on Non-Compete Agreements

July 14, 2021 by Brunini Law

By: Chris Fontan

On Friday, July 9, 2021, President Joe Biden signed his Executive Order on Promoting Competition in the American Economy (the Executive Order).  In the Executive Order, President Biden directed various federal agencies to implement over seventy specific actions aimed at broadly increasing competition in the American economy by impacting a wide range of economic activity, including mergers and acquisitions, occupational licensing, anticompetitive behavior, and prices of medical devices and prescription drugs.

One of the specific activities the Executive Order seeks to address is the use by companies of non-competition agreements—that is, those agreements that limit the ability of individual employees to work for competitors after leaving their employer. In Section 5(g) of the Executive Order, President Biden encouraged the Federal Trade Commission (“FTC”) to utilize its statutory rulemaking authority “to curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility.”  Interestingly, the Executive Order expressly states that its goal is to curb the “unfair” use of non-compete clauses. However, in remarks accompanying the Executive Order, the White House clearly stated that President Biden “encourages the FTC to ban or limit non-compete agreements” altogether.

During a public statement made at the signing of the Executive Order, President Biden denounced the “ridiculous” prevalence of non-competition agreements in the United States. As part of his argument in support of the Executive Order, the President alleged that:

  • 1-in-3 American businesses required employees to sign non-compete agreements, and
  • 1-in 5 American workers without a college degree are subjected to non-compete agreements.

President Biden argued these agreements, in many cases, were not implemented to protect any legitimate interest of the employer, but instead were put in place to “keep wages low.”

Impact of the Executive Order

A comprehensive rule governing non-competes would be an unprecedented step from the federal government.  Historically, the regulation of non-compete agreements has been left to the states, many of which have recently passed legislation of their own.  Recent state legislation has focused, among other issues, on restricting the use of non-competition agreements to employees above a certain compensation level. The Executive Order does not offer any details on whether these are the types of limitations President Biden would like the FTC to consider.

As written, the Executive Order “encouraged” the FTC to “ban or limit non-compete agreements”—far short of the type of sweeping prohibition that many felt President Biden would try to implement by executive action following his promises on the campaign trail. Instead, President Biden essentially asked the FTC to look at using its authority to address the issue. Moving forward, there are a wide range of potential avenues that American employers and employees could see, such as:

  • The FTC may attempt to prohibit the use of all non-competition provisions.
  • The FTC may attempt to prohibit the use of all non-compete provisions, as well as any other similar restrictive covenants—such as customer non-solicitation provisions or co-employee non-piracy provisions.
  • The FTC may attempt to prohibit the use of non-compete provisions with respect to a specific subset of employees—such as blue collar or lower-wage earning employees.
  • The FTC may attempt to regulate and restrict the method in which non-competition provisions are utilized—such as by requiring disclosure of a non-competition requirement to prospective employees in advance.

Despite the harsh rebuke contained in President Biden’s public statements and accompanying remarks, it seems unlikely that the FTC would pursue a complete ban on non-compete agreements.  Such a move would be met by strong opposition from the business community. Non-competes are viewed as vital by many employers seeking to protect their trade secrets and goodwill, among other legitimate business interests.

The express use of the phrase “unfair use” in the Executive Order suggest that the FTC may take a more moderate approach of using its regulatory power to attempt to limit the use of non-compete agreements with blue collar or lower-wage earning employees.  Even so, the administrative rulemaking process likely will take several months or even years.  Additionally, many question whether the FTC has the authority to regulate non-compete restrictions in the first place. That issue will almost certainly be litigated.

For now, employers are encouraged to continue to review their non-compete agreements for compliance with state law, and to contact their labor and employment counsel for additional information concerning these developments.  If you need Labor & Employment counsel, please contact any member of Brunini’s Labor & Employment Practice Group.

 

 

 

 

 

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  • Christopher R. Fontan
  • Claire W. Ketner
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  • Claire Williams

Department of Labor Issues OSHA’s COVID-19 Emergency Temporary Standards and Safety Guidance

June 11, 2021 by Brunini Law

By: Claire Williams

 

On Thursday, June 10, 2021, the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) issued a long anticipated emergency temporary standard (“ETS”).   In an unexpected turn, the ETS is only mandatory for employers in the health care industry.  OSHA also issued voluntary guidelines for employers outside of the health care industry.

Requirements for Health Care Industry Employers

Under OSHA’s ETS, most health care employers are required to perform the following measures:

  • Develop and implement a written COVID-19 plan;
  • Screen employees and non-employees that enter the workplace;
  • Mandate that face masks be worn at all times, with limited exceptions;
  • Practice social distancing of all people when indoors, with limited exceptions;
  • Adhere to certain cleaning and disinfection requirements;
  • Ensure proper ventilation of workplace (if applicable);
  • Notify proper parties of exposure or potential exposure to COVID-19;
  • Support COVID-19 vaccinations by providing reasonable time and paid live to employees for vaccination and any side effects following vaccination;
  • Provide COVID-19 training to employees; and
  • Report COVID-19-related hospitalizations and deaths to OSHA.

Guidelines for Non-Health Care Industry Employers

For employers not covered by the ETS, including employers outside the health care industry, OSHA issued non-binding guidance designed to mitigate and prevent the spread of COVID-19 in the workplace.  The guidance focuses on protecting unvaccinated and otherwise “at-risk” workers.  As an incentive for employers to encourage employee vaccinations, the guidance provides that, except for workplace settings covered by the ETS, employers with a fully vaccinated workforce no longer need to take steps to protect workers from COVID-19 exposure in the workplace.  If all employees are not fully vaccinated, however, then OSHA recommends that employers provide paid time off for employees to get vaccinated; instruct workers who are infected with, or have been exposed to COVID-19 to stay home from work; implement social distancing for unvaccinated and otherwise at-risk workers in communal areas; provide unvaccinated or otherwise at-risk workers with face coverings; provide COVID-19 training to employees; maintain proper ventilation systems; perform routine cleaning and disinfection; and continue to follow all other mandatory OSHA standards.

OSHA further recommends that employers at higher-risk workplaces (such as manufacturing facilities; meat, seafood and poultry processing facilities; and high-volume retail and grocery establishments), with mixed-vaccination status workers, implement additional precautions to those mentioned above in order to minimize the risk of COVID-19 infection.  These additional precautions include staggered break schedules; staggered arrival and departure times; visual cues as a reminder to maintain social distancing; proper ventilation; and proper spacing of workers on food processing or assembly lines.

We are committed to our clients and will continue to monitor legislation and regulations for their potential impact.  In the meantime, if you are unsure if the mandatory ETS applies to you or have questions about implementation of OSHA’s requirements or guidelines, we encourage you to consult with your Labor & Employment counsel.  If you need Labor & Employment counsel, please contact any member of Brunini’s Labor & Employment Practice Group.

 

 

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