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EMPLOYMENT LAW

Where we are on vaccines and masks in the workplace

Vaccine roundup The Biden Administration, through Executive Orders and various agencies, has adopted four separate vaccine mandates for (1) employers with 100+ employees (the OSHA ETS), (2) federal contractors, (3) federal employees and onsite contractors, and (4) healthcare employers who receive Medicaid or Medicare reimbursements (the CMS mandate).  Except for the CMS mandate, all these various vaccination mandates have either been rejected or stayed by the courts. On Jan. 13, 2022, the U.S. Supreme Court upheld the CMS mandate. OSHA mask guidance On Aug. 23, 2021, OSHA updated its workplace safety guidelines to recommend that employers require all employees–regardless of vaccination status–to wear masks when indoors and not physically distanced.  That guidance has not changed since it was added in August 2021.

EMPLOYMENT LAW UPDATE

OSHA emergency vaccine mandate withdrawn and forced arbitration may end for workplace sexual harassment

By Mike O’Brien After a recent United States Supreme Court decision prohibited it, the Occupational Safety and Health Administration (OSHA) officially announced the withdrawal of its COVID-19 vaccination and testing Emergency Temporary Standard (ETS), effective Jan. 26, 2022. According to The Society for Human Resource Management (SHRM), “OSHA’s withdrawal of its COVID-19 vaccination and testing ETS, which required employers with 100 or more employees to ensure their workers were vaccinated against COVID-19 or underwent weekly testing, nullifies employers’ obligations under the standard. The withdrawal would also discontinue the OSHA ETS case before the U.S. Court of Appeals for the Sixth Circuit because OSHA is unlikely to pursue merit finding for a withdrawn regulation. However, employers must continue to comply with state or local government vaccination and/or testing requirements, which are not… . . . read more

EMPLOYMENT LAW UPDATE

Supreme court blocks OSHA vaccine mandate

By Mike O’Brien In a 6-3 decision, the U.S. Supreme Court has issued its opinion blocking OSHA’s vaccine mandate for employers with 100 or more employees. The majority ruled on Jan. 13 that OSHA had exceeded its authority when it issued the vaccine mandate, concluding that OSHA has authority only “to set workplace safety standards, not broad public health measures.” The court found that COVID presents a “universal risk” not limited to the workplace that is “no different from day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases. Permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization.” Note: This decision addresses only the stay decisions… . . . read more

EMPLOYMENT LAW UPDATE

Supreme Court to hear challenges to OSHA & CMS vaccination mandates this week

By Mike O’Brien On Dec. 17, 2021, the Sixth Circuit Court of Appeals dissolved the stay of OSHA’s vaccine mandate for employers with 100 or more employees in a split 2-1 decision. Wasting no time, OSHA published a compliance update to provide new deadlines. Covered employers have through Jan. 10, 2022, to adopt and publish a vaccination policy, to ascertain and record employee vaccination status, and to implement a masking requirement for all unvaccinated employees. Employers have through Feb. 9, 2022, to begin collection of negative weekly COVID tests from unvaccinated employees. You’ll find that compliance update, and compliance resources, on OSHA’s website. Opponents of the vaccination mandate filed immediate challenges with the United States Supreme Court. On Dec. 22, 2021, the Supreme Court issued an order that it would hear oral arguments… . . . read more

EMPLOYMENT LAW UPDATE

OSHA updates guidance to track the latest CDC mask recommendations

By Mike O’Brien The U.S. Occupational Safety and Health Administration (OSHA) has updated its COVID workplace safety guidance entitled, Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace. OSHA’s latest update on Aug. 13 “reflect[s] the July 27, 2021 Centers for Disease Control and Prevention (CDC) mask and testing recommendations for fully vaccinated people.” Prior to this update, OSHA had stated that fully vaccinated employees did not need to wear masks and that COVID safety precautions really were focused on protecting only unvaccinated workers. However, that guidance has now changed in response to the highly contagious Delta variant. OSHA’s guidance includes “recommendations,” that do not carry the force of law and “creates no new legal obligations.” Still, OSHA’s counsel likely becomes a standard of reasonableness… . . . read more

WORKPLACE SAFETY

Can we use a contact tracing app to protect our business and employees?

By Lynne Curry bio Question: Every morning we conduct wellness checks on our employees as they arrive at work, but worry that some employees don’t monitor physical distancing when not at work. We’re barely hanging on as a practice, but all it would take is one employee getting COVID and infecting our other employees to shut us down. We have heard apps can provide real-time contact tracing and wonder if we can require our employees to wear them even when not at work? Answer: Potentially. According to the Occupational Safety and Health Administration, employers must act to reduce and manage COVID-19-related hazards in the workplace. Employers can view video surveillance that shows when employees clock in and out and reveal an employee’s interactions while at work. Employers can provide employees… . . . read more

EMPLOYMENT LAW UPDATE

The workplace in 2020: political talk, COVID-19 violence, executive order

By Mike O’Brien bio Don’t forget labor relations rules when employees talk politics at work During this contentious election season—with a highly polarized American electorate—many employers may be grappling with problems arising from workplace political discussions. Research by the Society for Human Resource Management (SHRM) has indicated that more than a quarter of workers report regularly talking about politics at work. Disputes and tension often result. Employers wishing to regulate political speech at work should remember that the National Labor Relations Act (NLRA) may affect their options. Although employees often assert that they have a First Amendment right to free speech, this is a misconception. The First Amendment restricts government action, not that of private employers. However, Section 7 of the NLRA gives employees the right to talk to each… . . . read more


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