Supreme Court Halts OSHA Vaccine/Testing Mandate, But Permits Healthcare Industry Requirement

Author: Laura Friedel

This afternoon, the U.S. Supreme Court blocked the OSHA Emergency Temporary Standard (“ETS”) that would have required all employers with 100+ employees to mandate vaccination or testing, while allowing the Department of Health and Human Services’ vaccine mandate for those touching healthcare facilities to go into effect. In striking down the OSHA requirement, the Court found that OSHA had exceeded its authority by implementing a requirement that was not specific to workplace safety.

Here are the key takeaways for employers:

  • The OSHA ETS is blocked, so there is no requirement for employers to implement a vaccination/testing requirement (other than in specific industries). 
  • Employers that want to implement a vaccine and/or testing requirement may do so, subject to legal requirements (including both accommodation obligations and state limitations on vaccine/testing mandates).
  • In states that prohibit or limit vaccine/testing requirements, employers will have to comply with those prohibitions/limitations and won’t be able to rely on the OSHA ETS as a reason to implement.
  • Employers that touch healthcare facilities need to comply with the Department of Health and Human Services vaccine mandate.
  • It’s possible that state or local government authorities may take steps to implement mandates – it remains to be seen which do so, and whether they are upheld.

NYC’s Latest Expansion of its Vaccine Mandate – What You Need to Know

Author: Laura Friedel

On December 6, 2021, NYC mayor Bill DeBlasio announced that all private-sector workers in the city will be subject to the vaccine mandate, effective December 27. The following day, however, Judge Frank P. Nervo in the Supreme Court of New York suspended the mandate pending a hearing scheduled for December 14, 2021. If upheld, the mandate requires two vaccine doses, unless a person received Johnson & Johnson’s single-dose vaccine, and will impact 184,000 businesses.

Mayor DeBlasio’s action closely followed action in Florida where a new standard technically permits vaccine mandates, but only if employees are permitted to opt out by submitting an exemption statement on one of five grounds (medical, religious, COVID-19 immunity, compliance with regular testing at the employer’s cost, of agreement to comply with reasonable PPE requirements). The new NYC and Florida requirements are just the latest in a string of state and local regulations around vaccine mandates (some requiring, some prohibiting, and some finding a place in the middle).

Earlier this year, an OSHA Emergency Temporary Standard (ETS) was issued. The ETS would require vaccination or weekly testing for employees of employers with 100 or more employees, but this requirement is in flux while courts hash out arguments regarding its enforceability. On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay the ETS, and the U.S. Court of Appeals for the Sixth Circuit now has jurisdiction over the ETS legal challenges. The Department of Labor has filed a motion to lift the stay entered by the Fifth Circuit, but in the meantime, OSHA has suspended implementation and enforcement of the ETS.

With the ETS in limbo and local jurisdictions implementing their own vaccine mandate requirements, businesses around the country are wondering what this means for them. The following are three recommendations to keep in mind:

  1. Consider local rules and regulations regarding vaccine mandates. In large part, your obligations will depend on where your employees are located and whether you are a government contractor or in the health care industry. If the ETS becomes effective, it will preempt state and local requirements that don’t go as far to require vaccines (such as in Florida), but until then, state and local requirements limiting employers’ right to require vaccines will prevail.
  2. Make a decision internally as to whether, if the ETS becomes effective, you will offer testing as an option for all or only for those who can’t get vaccinated for medical, religious, or similar reasons. Also, think about how you plan to conduct testing (such as requiring employees to get tested on own and turn in proof or testing employees on-site).
  3. Remind employees that management is following the situation and urge employees to get vaccinated now. Businesses can send a letter to their employees letting them know that the company is monitoring the new rules, including state and local requirements and the OSHA ETS, and that you will be following any rules that are enacted in your jurisdiction. As such, employees are strongly encouraged to get vaccinated now so that they are in compliance if/when it becomes effective. Additionally, if testing only will be offered to those employees with a bona fide need for an exception, you should let them know that they need to request an accommodation by a specific date so that the company has enough time to review the requests.

If you have any other questions regarding COVID-related mandates or other COVID-related issues, a member of our Labor & Employment Group would be happy to speak with you.

How to Effectively and Compassionately Handle Dismissals and Layoffs in a Remote Workplace

Author: Laura Friedel

Earlier this week, Better.com CEO Vishal Garg made news headlines for firing 900 employees over a Zoom call – in the midst of the holiday season. The termination was effective immediately.

We know that our clients and readers are unlikely to take such drastic action, but how does a business or manager lay off employees effectively and compassionately while operating in a remote workplace?

  1. Always have difficult conversations, including terminations and layoffs, on a one-on-one basis. Even if you can’t be in the same room as the person physically, the employee’s manager should have a personal conversation with the employee over video conference. 
  2. Make sure that the news is shared individually, not to a large group.
  3. Consider timing. If there are other major events going on in the employee’s life, such as a wedding or major holiday, you may want to reconsider the timing of the termination. 
  4. Don’t name-call. The reasons for termination can be communicated, whether it is company downsizing or poor performance, but avoid name-calling.
  5. Have a second person (ideally a representative from HR) present for the meeting in case there’s later a question about what was said. 
  6. Look at any applicable employment contracts or other relevant legal documents. If the employee has an employment contract in place, you’ll want to understand the terms of that agreement before making any employment decisions or having the conversation about dismissal.
  7. Keep your emotions in check. Employment terminations are a challenging situation for anyone, but it’s important to not focus on your own feelings when having the conversation with the employee.
  8. Discuss lay-offs and other employment separations with labor and employment counsel before making decisions. An employment attorney can help guide you through the termination process so that it goes as smoothly as possible and you minimize the risk of any potential legal action from a disgruntled ex-employee.

If you have any questions regarding remote workplace issues, please reach out. A member of our Labor & Employment Group would be happy to speak with you.

Reminder: Illinois Employers Must Complete Annual Anti-Harassment Training Requirement By End of the Year

Author: Becky Canary-King

Illinois’ Workplace Transparency Act requires that all employees complete sexual harassment prevention training on an annual basis. The law applies to all employees working in the state, including short-time, part-time, and remote employees. LP offers a remote training program that is compliant with state requirements for employees and managers. Alternatively, employers can conduct the training on their own using IDHR’s Training Program.

If you would like more information about LP’s program or would like to schedule a session, please contact: EmploymentLaw@lplegal.com.

OSHA Releases COVID-19 Vaccination Rule For Private Employers – What You Need to Know

Author: Becky Canary-King

The Biden administration has finally released its long-awaited emergency temporary standard (“ETS”) on mandatory vaccination requirements in the workplace. As anticipated, the ETS requires that employers with 100 or more employees either establish a mandatory vaccination policy or a vaccination/testing policy.

It’s important to note that the ETS is going to be challenged in court – so while employers should certainly get started in preparing for the new requirements, their future is uncertain. 

In the meantime, here are answers to the key questions that employers need to know:

Are employers required to mandate vaccines?

No. Under the ETS, employers with 100 or more employees must either establish a mandatory vaccination policy or establish a policy under which employees must choose either to be fully vaccinated or provide proof of regular testing and wear a face mask in the workplace.  The vaccination/testing policy must be implemented by January 4, 2022.

How do employers determine whether they are covered?

The ETS covers all private employers with 100 or more employees. To determine the number of employees, employers must include all employees across all of their U.S. locations, regardless of employees’ vaccination status or where they perform their work. Part-time employees count towards the company total, but independent contractors do not. 

We anticipate questions regarding whether related companies’ will be considered the same or separate for purposes of counting to 100 employees, but we have not yet received specific guidance on this question.  In the meantime, we will need to look at the facts and circumstances and tests under other employment laws (such as the FMLA) to determine whether affiliated companies’ headcounts need to be aggregated.

Which employees are covered?

The ETS generally covers all employees of covered employers except those who (1) do not report to a workplace where other individuals such as coworkers or customers are present, (2) work from home, or (3) work exclusively outdoors. These employees still count toward the 100-employee threshold, though.

What is required for a mandatory vaccination policy?

A mandatory vaccination policy must require vaccination of all covered employees, including vaccination of all new employees as soon as practicable, other than those employees for whom a vaccine is medically contraindicated or who are legally entitled to a reasonable accommodation under federal law.

What is required for employees who get vaccinated?

The ETS requires employers to support vaccination by providing employees four hours’ paid time off at the employee’s regular rate of pay to receive the vaccine (covering both travel time and the actual time receiving the vaccine). Employers must also provide reasonable time and paid sick leave to recover from side effects following each vaccination dose. This requirement is effective immediately.

Are employers required to pay for testing?

The ETS does not require an employer to pay for the costs associated with testing. However, payment for testing may be required by other laws, regulations, or collective bargaining agreements.

When is the deadline to comply?

Covered employers have until January 4, 2022 to ensure their covered employees are fully vaccinated or submit to weekly testing. Beginning December 5, 2021, covered employers must ensure that unvaccinated employees wear masks in the workplace.

If you have any other questions regarding OSHA COVID requirements or other COVID-related issues, a member of our Labor & Employment Group would be happy to speak with you.

Changes Coming to the Illinois Health Care Right of Conscience Act to Close COVID loophole… in June 2022

Author: Becky Canary-King

The Illinois legislature has approved an amendment to the Health Care Right of Conscience Act (“HCRC”) which would limit employees’ ability to use the law to avoid workplace vaccination mandates.

HCRC, which was enacted in 1977, prohibits discrimination against individuals for their “conscientious refusal” to receive “any particular form of health care services contrary to his or her conscience.” The Act also makes it unlawful for employers to impose any burdens in terms or conditions of employment on, or to otherwise discriminate against, any applicant for the applicant’s refusal to receive any form of health care services contrary to his or her conscience.

The original intent of the bill was to allow health care providers to refuse to provide contraceptives or abortion services if it violated their conscience. However, some individuals have argued that the broad language of HCRC provides a shield for employees to avoid COVID-19 testing and vaccination mandates.

The Amendment would add language stating that it is not a violation of the Act to institute and enforce COVID-19 requirements in the workplace and other institutions. The proposal does not interfere with employees’ right to receive reasonable accommodations for their sincerely held religious beliefs.

Governor J.B. Pritzker is expected to sign the amendment, which would go into effect in June 2022.

Illinois Law on Non-Competes and Non-Solicits is Changing January 1st. Are You Ready?

Author: Laura Friedel

Amendments to the Illinois Freedom to Work Act mean that for restrictive covenant agreements signed on or after January 1, 2022:

  • Employees making $45k or less per year can’t be subject to non-solicits and employees making $75k or less per year can’t be subject to non-competes
  • “Adequate Consideration” must be provided (either 2 years’ employment after signing or other adequate consideration)
  • Enforceability will depend on the particular facts at issue, including whether the employee was exposed to customer and employee relationships, the near-permanence of customer relationships, the acquisition, use and knowledge of confidential information, and the scope of the restriction (time, geography and scope of activity)
  • Blue-penciling (court revising provision to make it enforceable) is still permitted but courts need to consider a number of factors, including whether the restrictions as written were a good faith effort to protect legitimate business interests, and won’t wholly rewrite covenants
  • And perhaps most critically…. for the agreement to be enforceable, the employee must be given 14 days to consider the agreement and be told to consult with an attorney

These changes mean that companies who have their Illinois employees sign restrictive covenants must revise their templates. There are two ways we can help you get ready:

Option 1: Review your template agreements broadly to make sure that you’re meeting the new legal requirements and optimizing enforceability while protecting the company’s legitimate business interests.

If you’d like to consult with one of our Employment attorneys in this review, please click here and we’ll be in touch.

Option 2: If you’re not interested in doing a larger review, at a bare minimum, it’s critical that you add “magic language” to your templates saying that the employee has had 14 days to consider the agreement and has been advised to talk with an attorney before signing.

If you would like this language to drop into your standard agreements, we are happy to provide it to you free of charge – click here to request.

If you have any questions or would like to talk further about the best way for your company to comply with Illinois’ new requirements, please contact us at EmploymentLaw@lplegal.com – we’d love to help!

EEOC Issues New Guidance on Religious Objections to COVID-19 Vaccine Mandates

Author: Laura Friedel

On Monday, October 25, 2021, the EEOC released much-awaited guidance on how employers should handle employee requests to be exempted from vaccination requirements because of religious beliefs. The new guidance is in the new Section L of the EEOC’s Technical Assistance.  Here are some highlights:

  • Employees must tell their employer if they are requesting an exception to COVID-19 vaccination requirements because of a conflict between that requirement and their sincerely held religious beliefs, practices or observances.  However, they don’t have to use any “magic words” in making their request.
  • Employers should assume that a request for religious accommodation is based on sincerely held religious beliefs.  However, if the employer has an objective basis for questioning either the nature or the sincerity of a stated belief, they can make a limited factual inquiry and seek supporting information. 
  • The definition of “religion” under Title VII includes both traditional religious beliefs and non-traditional religious beliefs, but it does not include political, social or economic views or personal preferences.  Employees may be asked to explain the nature of their belief that requires the accommodation.
  • Even if an employee’s sincerely held religious belief prohibits them from being vaccinated, the employer can still refuse to provide an exception to a vaccine mandate if it would cause the employer an “undue hardship.”  While the EEOC notes that in many cases it is possible to accommodate employees’ requests for exceptions to a vaccine mandate (for instance, by allowing work-from-home or requiring the employee to take extra measures (such as frequent testing), it also acknowledges that an employer can’t be required to bear more than a “de minimis” cost in accommodating an employee’s religious belief – for instance, if it would impair workplace safety, diminish efficiency or cause coworkers to carry the employee’s share of potentially hazardous or burdensome work.  The key here is that it is a very fact-specific inquiry, so employers should analyze each request individually, rather than setting a broad rule.
  • Just because one employee is granted an exception from a COVID-19 vaccine mandate doesn’t mean that it needs to be granted to others.  Again, the key is the particular facts and circumstances, so employers should look at the employees’ duties, how many people they come into contact with, etc.
  • Even where an employer is required to provide an accommodation, it is not required to provide the particular accommodation requested by the employee.  So if there’s another accommodation available that would allow the employee to perform their duties and would not cause an undue hardship, it can be offered, even if it’s not the accommodation the employee requested.
  • Employers may revisit accommodations based on changed circumstances, but as a best practice, any changes should be discussed with the employee in advance so that alternate accommodations can be considered.

What is clear from the EEOC’s guidance is that requests for exceptions to vaccine requirements for religious reasons need to be considered on a case-by-case basis. It is also important to consider state and local requirements that may limit vaccine mandates.  As such, we recommend consulting with an employment attorney in responding to such requests.

Illinois Mask Mandate: What Employers Need to Know

Author: Becky Canary-King

Effective Monday, August 30, Illinois Governor J.B. Pritzker issued Executive Order 2021-20, which requires all individuals in Illinois age two or older who are able to medically tolerate a face covering to wear a mask in indoor public spaces, regardless of vaccination status. 

Under the Executive Order, “indoor public spaces” include offices and other workplaces, though it does provide that employees may remove their masks when they can consistently maintain six feet of distance (such as in their office or cubicle).

For employers who have returned employees to the workplace, this means that masking requirements should be reviewed or reissued. Any mask policy should require all employees to wear masks while indoors, regardless of vaccination status, except when they can consistently maintain six feet of distance (such as when workers are in their office or cubicle space). The Order contains additional requirements for health care workers, schools, and government facilities. 

Notably, the Order also makes clear that it does not prohibit employers from implementing vaccination or testing requirements for employees, contractors, or other visitors that exceed the requirements of this Executive Order. 

The Labor and Employment Group at Levenfeld Pearlstein regularly helps businesses formulate COVID-19 policies for their workforces. If you’re interested in discussing this Order or any other COVID-19 requirements, please reach out. 

Managing Your Workforce (Legally) in 2022

Please join us for our Annual Labor & Employment complimentary webinar on September 23, 2021 from 12 PM to 1:30 PM CST. This webinar is geared towards human resources professionals, in-house counsel, and business owners and other senior business leaders. We will review developments over the past year and discuss tips to keep your workplace practices moving forward.

Topics Include:

  • Update on Covid-19 in the workplace, including vaccination and mask mandates, leave obligations, accommodations and return to work trends.
  • New state efforts to regulate equal pay through reporting, information sharing and limitations on requests for salary history
  • Increased scrutiny of restrictive covenant agreements, including President Biden’s Executive Order and changes to Illinois law that require action before year end
  • State law developments and trends in the areas of criminal history, data privacy and non-discrimination
  • and more….

CLE & HRCI Credits Available. Register Online.