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.

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.

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.

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.

Now that the Pfizer Vaccine Has Been Given Full Approval, Can Employers Require Employees to Get the COVID-19 Vaccine?

Author: Laura Friedel

Yes, though employers still must consider accommodation requests.

While employers were in a good position requiring vaccines before, the full approval of the Pfizer vaccine makes it even clearer that workplace vaccine mandates are permissible. 

However, employers still have to consider accommodation requests from employees who claim that they can’t get the vaccine for medical reasons, religious reasons, or pregnancy. Whether a refusal to be vaccinated triggers a right to accommodation, and whether allowing an employee to not be vaccinated will depend on the circumstances. Employers have a good argument that having an unvaccinated employee would cause an undue burden and/or direct threat to other employees, and that, as a result, no accommodation is required by law. However, even if making this argument, it’s still important to go through the accommodation process and consider whether there are other steps that could be taken that would allow the employee to remain unvaccinated while not causing the employer an undue burden or creating a direct threat to others. Employers should also check state and local law for relevant requirements.

LP will continue to monitor guidance related to administering the vaccine and update the answer to this question accordingly.

The Illinois Freedom to Work Act – Anticipated Amendments

Author: Jason Hirsh

Non-competes and non-solicits, so-called restrictive covenants, have been at the center of a nationwide discussion for many years. On the one hand, employee-leaning constituencies have advocated for substantial restrictions and/or outlawing restrictive covenants.  Employer groups, on the other hand, have argued that restrictive covenants are necessary to protect important business interests, such as mitigating the risk of unfair competition.  The debate has raged on for years now, and many states have enacted legislation regulating restrictive covenants.    

Illinois is now jumping back into the fray, with the General Assembly passing an amendment to The Illinois Freedom to Work Act (the “Amended Act”).  Should Governor Pritzker sign the Amended Act into law, which is expected, the Amended Act will usher in a new era of restrictive covenant regulation effective January 1, 2022. 

Employers should consider this anticipated change to Illinois law.  Below is a discussion of key points.

Prospective Application

The Amended Act addresses the use of non-competes and non-solicits, both of which are defined in the proposed legislation. Critically, both categories are limited to those “entered into after the effective date of this Amendatory Act of the 102nd General Assembly.” This means the Amended Act will apply prospectively and its application will be limited to employment agreements signed after January 1, 2022.

Salary Thresholds

Throughout the nation, there is a growing view that lower-paid employees should not be saddled with the burden of post-employment restrictive covenants.  The Amended Act joins this movement by prohibiting non-competes, initially, with respect to any employee not earning more than $75,000 and prohibiting non-solicits, initially, with respect to any employee not earning more than $45,000.  These thresholds will increase every five years until 2037:

(a) No employer shall enter into a covenant not to compete with any employee unless the employee’s actual or expected annualized rate of earnings exceeds $75,000 per year. This amount shall increase to $80,000 per year beginning on January 1, 2027, $85,000 per year beginning on January 1, 2032, and $90,000 per year beginning on January 1, 2037. A covenant not to compete entered into in violation of this subsection is void and unenforceable. No employer shall enter into a covenant not to compete with any low-wage employee of the employer.

(b) No employer shall enter into a covenant not to solicit with any employee unless the employee’s actual or expected annualized rate of earnings exceeds $45,000 per year. This amount shall increase to $47,500 per year beginning on January 1, 2027, $50,000 per year beginning on January 1, 2032, and $52,500 per year beginning on January 1, 2037. A covenant not to solicit entered into in violation of this subsection is void and unenforceable. A covenant not to compete entered into between an employer and a low-wage employee is illegal and void

Presumably, the Amended Act would be amended before or around 2037 to implement further adjustments to the compensation thresholds.

Defining Adequate Consideration

Illinois law has traditionally required “adequate consideration” to support enforcement of a non-compete or non-solicit covenant. Since Fifield v. Premier Dealer Services, Inc. was decided in 2013, there has been an active controversy over what actually constitutes “adequate consideration.”  In Fifield, the First District determined that in the absence of other consideration, continued employment was adequate consideration only if the employee was employed for two full years following execution of the agreement containing the restrictive covenant at issue. That ruling was adopted by other courts in Illinois.  But the federal courts largely rejected Fifield, believing that the Illinois Supreme Court would not, if provided an opportunity, adopt the Fifield rule.     

The Amended Act resolves this disagreement by codifying the Fifield rule: “‘[a]dequate consideration’ means (1) the employee worked for the employer for at least 2 years after the employee signed an agreement containing a covenant not to compete or a covenant not to solicit …”

The Amended Act does not, however, limit “adequate consideration” to continued employment, but encompasses other undefined professional or financial benefits – “‘[a]dequate consideration’ means … (2) the employer otherwise provided consideration adequate to support an agreement to not compete or to not solicit, which consideration can consist of a period of employment plus additional professional or financial benefits or merely professional or financial benefits adequate by themselves.” 

The contours of this other consideration are nebulous at best. Nevertheless, if past legal disputes are predictive, other benefits are likely to include cash payments, special training, etc.  What will no doubt be important is that the operative employment agreement is drafted to specifically describe other benefits as part of the employee’s consideration package so the employment agreement clearly reflects that the other benefits are given in return for the restrictive covenant.     

Advising Employees

Employees often sign an employment agreement in the days leading up to employment or on the employee’s first day of employment.  Employers beware: if the Amended Act is signed into law, employers must advise employees in writing to consult with an attorney before agreeing to a non-compete or non-solicit restrictive covenant and provide employees 14 days to review the covenant.  Absent compliance, the covenant is “illegal and void”: 

Ensuring employees are informed about their obligations. A covenant not to compete or a covenant not to solicit is illegal and void unless (1) the employer advises the employee in writing to consult with an attorney before entering into the covenant and (2) the employer provides the employee with a copy of the covenant at least 14 calendar days before the commencement of the employee’s employment or the employer provides the employee with at least 14 calendar days to review the covenant. An employer is in compliance with this Section even if the employee voluntarily elects to sign the covenant before the expiration of the 14-day period.

Employee Remedy

In the past, employers who pursued and lost lawsuits seeking to enforce restrictive covenants typically had no risk of paying the employee’s legal fees. Employers wisely did not draft employment agreements to provide an employee with such a right. The Amended Act changes the landscape, giving employees the statutory right to recover attorney’s fees if the employee “prevails” in a lawsuit seeking to enforce a non-compete or non-solicit: 

Sec. 25. Remedies. In addition to any remedies available under any agreement between an employer and an employee or under any other statute, in a civil action or arbitration filed by an employer (including, but not limited to, a complaint or counterclaim), if an employee prevails on a claim to enforce a covenant not to compete or a covenant not to solicit, the employee shall recover from the employer all costs and all reasonable attorney’s fees regarding such claim to enforce a covenant not to compete or a covenant not to solicit, and the court or arbitrator may award appropriate relief.

In the Amended Act, the Illinois General Assembly empowers the Attorney General to investigate and take action against employers that violate Amended Act:

Sec. 30. Attorney General enforcement. (a) Whenever the Attorney General has reasonable cause to believe that any person or entity is engaged in a pattern and practice prohibited by this Act, the Attorney General may initiate or intervene in a civil action in the name of the People of the State in any appropriate court to obtain appropriate relief.

This is a fairly significant change, requiring reconsideration of aggressive drafting and enforcement of non-competes and non-solicits. 

The Labor & Employment and Litigation Groups at Levenfeld Pearlstein will continue to monitor any developments on the amendments to the Illinois Freedom to Work Act. If you have any specific questions about the Act or its amendments, please do not hesitate to reach out.

This document is not intended to, nor shall it be considered legal advice. If you have any questions regarding your legal rights, you should address the specific matter with your attorney.

Navigating the Vaccine: Considerations Employers Should Keep in Mind

Author: Labor & Employment Group

Whether your business chooses to require the vaccine or allow employees to get vaccinated at their option, all employers are facing new challenges managing through this phase of the pandemic. Below are some considerations employers should be keeping in mind:

  • Continue to Require Safety Measures. The CDC continues to recommend employers require social distancing, face masks, and other safety measures in the workplace. While the CDC has indicated that fully vaccinated individuals can gather in small groups, it has not revised its recommendations regarding workplace safety.
     
  • Provide Resources for Employees. Many individuals are still having difficulty finding and traveling to vaccine appointments. Employers requiring or encouraging vaccination should consider what resources they can provide to assist employees with the process. Options include sharing local resources for appointment scheduling, providing time off, and providing other monetary incentives such as gift cards for employees who get vaccinated.
     
  • Consider Remote Work Options Moving Forward. With many employees working remotely for the first time during the pandemic, we anticipate greater demand for remote work moving forward. Employers should take time now to consider whether they will allow ongoing remote work once all employees can safely return to the workplace, and the potential implications for hiring and retention.

For more questions on COVID-19 vaccination policies in the workplace, please contact any member of our Labor and Employment team.

COVID-19 OSHA Recordkeeping: What If an Employee Tests Positive?

In an interim guidance issued late last week, the Occupational Safety and Health Administration (OSHA) confirmed that COVID-19 is a recordable illness under OSHA’s recordkeeping requirements. Thus, employers are responsible for recording a case of an employee with coronavirus if:

  1. the case is a “confirmed” case of COVID-19
  2. the case is “work-related”
  3. the case involves one or more of the general recording criteria set forth in 29 CFR § 1904.7

A confirmed case means an individual with at least one respiratory specimen that tested positive for SARS-CoV-2.

The definition for work-related is changed for most employers to make this determination easier. For employers of workers in the healthcare industry, emergency response organizations (e.g., emergency medical, firefighting, and law enforcement services), and correctional institutions, employees must continue to make work-relatedness determinations pursuant to 29 CFR § 1904. For all other employers, a COVID-19 case is considered work-related only if:

  1. There is “objective evidence” that a COVID-19 case may be work-related. For example, a number of cases developing among workers who work closely together without an alternative explanation; and
  2. The evidence was “reasonably available” to the employer. Reasonably available evidence includes information given to the employer by employees, and information an employer learns in the ordinary course of managing its business and employees.

This policy is intended to allow employers to focus their efforts on maintaining safe workplaces, rather than making difficult work-relatedness decisions.

There are number of considerations for managing your workplace after an employee tests positive. Levenfeld Pearlstein is available to advise through every step in the process.

OSHA COVID-19 Poster on Safety in the Workplace: What Do I Need to Know?

Yesterday, the Occupational Safety and Health Administration (OSHA) released a new poster which highlights ten infection-prevention measures employers can take to reduce risk of exposure to coronavirus in the workplaces. The poster is not required to be posted in the workplace, but employers may find it a useful reminder for employees.

Safety measures listed on the poster include encouraging sick workers to stay home; providing places to wash hands; discouraging workers from using other workers’ phones, desks and other work equipment; and regularly disinfecting surfaces, equipment, and other elements of the work environment.

The poster is available for download in English, or Spanish.