Brunini Law

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

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

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

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

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

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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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OSHA Finally Releases COVID Vaccine/Testing Mandate for Employers

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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.

 

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

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

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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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New Stimulus Package and the Families First Coronavirus Response Act

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On Sunday, December 27, 2020, President Donald Trump officially signed into law Congress’ most-recent major stimulus package, aimed at blunting the continuing economic effects of on-going COVID-19 pandemic.  Earlier this year, Congress passed a larger series of similar measures, including the $2.2 trillion Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), as well as $104 billion Families First Coronavirus Response Act (“FFCRA”).  This most recent stimulus package totals $900 billion, and was signed in conjunction with a separate $1.4 trillion government funding bill.

The December 2020 stimulus package provides continued funding for a wide range of governmental assistance programs initiated earlier this year—including the Paycheck Protection Program and expanded unemployment assistance.  One question most HR and employment professionals had concerning the December 2020 stimulus package was what, if any, impact it would have on the fate of the FFCRA.

 

The Families First Coronavirus Response Act (FFCRA)

Signed into law on March 18, 2020, the FFCRA contained two principal mandates: (1) the establishment of new, paid sick leave rights for workers impacted by COVID-19 and those serving as caregivers for others with COVID-19; and (2) the establishment of new, enhanced leave entitlements under the Family Medical Leave Act (FMLA), including limited paid leave rights.  Over the past nine months, human resources professionals have worked hard to interpret and implement these new leave provisions.

 

The December 2020 Stimulus Package’s Impact on the FFCRA

One key feature of the FFCRA was the fact that it was set to automatically expire on Thursday, December 31, 2020.  Many experts felt that Congress would use the December 2020 stimulus package as an opportunity to extend the obligations/benefits of the FFCRA.  However, the final text of the December 2020 stimulus package does not extend the paid sick leave and paid family and medical leave requirements of the FFCRA. Therefore, an employer’s obligation to provide paid leave under the FFCRA will cease at the end of the year.  (Note: It is possible that the employee could be entitled to normal unpaid leave under the FMLA even after the FFCRA expires, if they still have weeks available under the FMLA.)

Congress did take the opportunity to extend the tax credit contained for both the Emergency Paid Sick Leave and the Emergency Family and Medical Leave contained within the FFCRA.  So, while employers are not required to provide paid leave under the FFCRA after December 31st, if they voluntarily elect to do so (and assuming covered employees have eligible leave remaining), these employers can continue to claim the payroll tax credit for those payments through March 31, 2021.

Despite Congress’ decision not to extend the FFCRA with the December 2020 stimulus package, we strongly encourage employers to continue to monitor this issue into early 2021, as President-elect Biden has already discussed plans to pass an even larger stimulus package once both he and the “new” Congress take office.  It is possible that this legislation could expand/enhance the FFCRA.

Can U.S. Employers Require Employees to Receive COVID-19 Vaccine?

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As most everyone has seen or heard, the first wave of vaccines targeting the COVID-19 outbreak are beginning to emerge and progress at a breakneck pace.  On December 11, 2020, after months of research and development, the U.S. Food and Drug Administration (FDA) granted an “emergency use authorization” (EUA) for Pfizer’s COVID-19 vaccine. One week later, on December 18, 2020, the FDA granted a similar EUA for Moderna’s COVID-19 vaccine.  Given the astronomical rise in the infection rate, employer interest in the vaccines is extremely high. Thus, employers are asking whether they can, or should, require employees to take the vaccine.

The Current State of Approval of the Vaccines

Biological products such as vaccines are typically approved and regulated by a division within the FDA. For a vaccine to be approved, the FDA must determine that it is both safe and effective, based on data from laboratory studies and clinical trials. The FDA assesses both the quality and the quantity of the data provided when determining whether a vaccine meets this standard.

While this generally is a lengthy process, the FDA has the authority to accelerate the development and review process for vaccines used to treat/prevent serious conditions or life-threatening diseases, such as COVID-19. Even under an expedited approval process, however, priority review may take up to six months or more from the time of application.  In fact, the FDA previously announced the issuance of EUAs for COVID-19 vaccines will also requires at least two months of follow-up safety data after trial participants have been fully vaccinated.

The FDA’s issuance of EUAs to Pfizer’s and Moderna’s vaccines signifies that the US Department of Health and Human Services (HHS) has concluded: (1) COVID-19 is a serious or life-threatening disease; (2) it is reasonable to believe that the vaccine may be effective in treating or preventing the disease; (3) the known and potential benefits of the vaccine outweigh the known and potential risks; and (4) there is no adequate, approved, and available alternative.

Can Employers Mandate Employee Inoculation

With the impact of COVID-19 on business and the economy only continuing to intensify, many employers want to know if they can require their employees to receive one of these COVID-19 vaccines.  As a threshold matter, it is important to remember that FDA approval via a EUA is different from full FDA approval.  It remains somewhat unclear whether employers may require employees to be inoculated with a vaccine approved only pursuant to a EUA.

Practically speaking, some feel that the language within the EUAs could preclude employers from enforcing a requirement to take a vaccine issued under a EUA, though this issue has never been legally tested.  When a vaccine is issued under a EUA, the FDA (and the vaccination provider) has an obligation to inform vaccine recipients about its potential benefits and risks, the extent to which such benefits and risks are unknown, whether any alternative products are available, and “that they have the option to accept or refuse the vaccine.”  This language comes from the federal statute governing the EUA.

While this statement would seem to preclude mandatory vaccination—at least during a EUA stage—it is probable that this directive is towards government entities—in other words, prohibiting the government from forcing the public at large to receive the vaccine. It does not appear targeted towards private employers and their ability to condition an individual’s continued employment on taking the vaccine.  (This analysis may be different in unionized settings governed by a collective bargaining agreement.)

Assuming that the language within the EUA is not an issue, other laws touch on the ability of an employer to mandate inoculation of its workforce.

OSHA

At present, there is no OSHA standard that would mandate employers to offer a COVID-19 vaccine when one becomes available. Similarly, OSHA has not yet provided guidance on COVID-19 vaccines. There is some speculation in the legal community that OSHA may use the OSH Act’s so-called General Duty Clause to issue citations to employers that fail to offer COVID-19 vaccines. OSHA issues citations under its General Duty Clause when no specific OSHA standard applies.

In a 2009 letter of interpretation, OSHA previously said that employers that wished to require employees to receive a seasonal flu vaccine could do so, subject to certain exceptions.  OSHA emphasized that employees need to be properly informed of the benefits of the vaccinations. It clarified that if employees refuse the vaccine due to a reasonable belief that they have a medical condition creating a real danger of serious illness or death (for example, a serious reaction to the vaccine), they may be protected as a whistleblower under Section 11(c) of the Occupational Safety and Health Act.

Ultimately, OSHA’s statutory authority to issue a General Duty Clause citation will depend on a variety of factors, including (1) guidance from the CDC and OSHA on use of the vaccine in the workplace, and (2) the strength of the employer’s COVID-19 safety and health program and whether it follows other guidance from public health officials.

EEOC

On December 16, 2020, the EEOC updated its ongoing COVID-19 guidance with questions-and-answers specifically addressing mandatory COVID-19 vaccination policy issues.  In sum, the guidance stated that employers can implement and enforce mandatory COVID-19 vaccination policies for employees, with certain exceptions and caveats.

More specifically, the EEOC stated that employers can require that employees receive the COVID-19 vaccine as a condition of returning to, or remaining in, the workplace. However, employers must attempt to accommodate employees who, due to medical disabilities or sincerely-held religious beliefs, decline or refuse to receive the vaccine.  If an employer determines, based on objective evidence, that the presence of an unvaccinated employee (i.e., one who declines or refuses to be vaccinated against COVID-19 for disability or religious reasons) presents a “direct threat to the health and safety of persons in the workplace that cannot be reduced or eliminated through a reasonable accommodation,” the employer can exclude the employee from the workplace. When the employer excludes an unvaccinated employee from the workplace due to the perceived direct threat presented by his or her presence in the workplace, the employer may not automatically terminate the employee, but instead must assess whether other accommodations, such as remote work, can be provided.

According to the EEOC, administration of a COVID-19 vaccine by an employer, or by a third-party with which the employer has contracted to provide vaccinations to employees, is not a “medical examination” for purposes of the Americans with Disabilities Act (ADA). Similarly, employers can either administer the vaccine or requiring its employees to provide proof of vaccination without implicating the Genetic Information Non-Discrimination Act (GINA).

NLRB

Employers with unionized workforces should be mindful of the National Labor Relations Act (NLRA) and any labor contract obligations. Absent a “legal” mandate that employees be vaccinated (by a federal, state or local government), a vaccine requirement likely would be considered a mandatory subject of bargaining that gives rise to a duty to bargain prior to implementation, unless there’s an existing labor contract that provides for a management right to implement such a decision without bargaining. Employers also should consider any labor contract language that would foreclose mandatory vaccination.

Even in a nonunionized setting, there are potential NLRA implications. Section 7 of the NLRA grants employees the right to engage in “concerted activities” for the purpose of “mutual aid and protection.” This provision may protect the rights of employees who engage in concerted activities with regard to a mandatory workplace vaccine—such as: protesting against a mandatory vaccination policy, organized office communications or flyers among coworkers concerning such a policy, or even simple coworker discussions about the vaccine.

State Laws

State laws may also play a role with respect to regulation of a COVID-19 vaccine. To date, it does not appear that any state laws have been enacted regarding the COVID-19 vaccine.  However, nearly all states require certain healthcare facilities to mandate, or at least offer various immunizations, such as seasonal influenza, Hepatitis B, and Measles, Mumps, Rubella (MMR), to their workers. Some states strictly limit the reasons a vaccination may be declined.  At the same time, a significant number of other states—including Alabama, Kentucky and Tennessee—permit an employee to decline the influenza vaccination for any reason, so long as the employee was informed of the health risks beforehand. Therefore, before implementing any workplace COVID-19 vaccination policy, employers should consider any relevant legislative developments in their local jurisdictions.

CONCLUSION

Currently, there are more questions than answers regarding COVID-19 vaccines. Even though an employer likely can require its employees to get the COVID-19 vaccine, employers should weigh the full scope of employee relations concerns and potential legal challenges associated with doing so. While the federal government has issued projections which indicate that there may be enough vaccine to reach the vast majority of Americans who want to take it by early April 2021, initial supplies of both vaccines are expected to be limited throughout the remainder of 2020 and early 2021. As a result, widespread vaccines will not be available for most people or businesses right away, making compliance with a mandate tricky.

Employers should consider the practical impacts of a mandatory inoculation policy before mandating that employees get vaccinated, such as: the supply of available vaccines; pay or time off for the time an employee spends getting vaccinated, or who has side effects afterwards; and reimbursement or coverage of any cost for the vaccine.

You are STRONGLY encouraged to consult with your Labor & Employment counsel before designing and/or implementing any type of mandatory COVID-19 vaccination policy.

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