The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) establishes rights and benefits for employees and employment applicants who have served in the military or have engaged in other forms of protected governmental service. On August 10, 2021, the Third Circuit Court of Appeals revived a proposed class action filed by a Navy reservist FedEx employee by holding that, under USERRA, short-term military leave must be treated as paid leave if the employer offers “comparable” forms of short-term paid leave for non-military reasons.  The court specifically referenced that FedEx pays employees who miss work for other reasons — such as jury duty, illness, and bereavement – and remanded the case to the district court to determine if those forms of leave are comparable to military leave. This decision, which follows a Seventh Circuit decision reaching a similar conclusion, could require employers to pay for military leave if they provide pay for other types of leave.  Employers should review their military leave policies to determine what, if any, pay may be required in light of other voluntary paid leave benefits that they offer.

The City of Philadelphia announced new masking restrictions on August 11. Beginning at 12:01 a.m. on August 12, indoor businesses and institutions in Philadelphia must either require masks for employees and customers or verify that everyone is fully vaccinated. For businesses that do not require proof of vaccination, all customers and employees must wear masks, regardless of vaccination status.  Indoor dining may continue, but restaurants that do not require proof of vaccination must require masking when patrons are not seated and eating or drinking. These restrictions do not apply to outdoor dining.

Masks will also be required in public areas, all city buildings, and in unseated outdoor gatherings of 1,000 or more people. The city is implementing these new masking requirements in an effort to curb the spread of the Delta variant, and warns that further restrictions may be necessary if case counts continue to increase.

On August 5, the Superior Court of Pennsylvania ruled, in a case of first impression, that the Pennsylvania Medical Marijuana Act (“MMA”) permits a private right of action for employees who claim that they were discriminated against or terminated for use of medical marijuana in violation of the MMA.  The court held that such a discharge from employment can form the basis of a claim for wrongful termination in violation of public policy.

In Scranton Quincy Clinic Co. v. Palmiter, 2021 PA Super 155, Scranton Quincy Clinic Company (Hospital) appealed from an order refusing to dismiss the complaint filed by former employee Pamela Palmiter. Ms. Palmiter became a medical marijuana card holder due to her chronic pain, chronic migraines, and persistent fatigue in December 2018. In 2019, the Hospital hired her as a Certified Medical Assistant.  At a scheduled drug test, Ms. Palmiter informed the laboratory that she was prescribed medical marijuana and produced a copy of her certification. Shortly thereafter, the Hospital terminated her employment based on the results of the drug test.

Following her discharge, Ms. Palmiter asserted several causes of action against the Hospital, two of which survived preliminary objections: first, a private cause of action under the MMA; and, second, a claim for wrongful discharge in violation of public policy. The Hospital appealed the trial court’s interlocutory order, raising two questions on appeal:

  1. Whether Ms. Palmiter’s claim under the MMA was legally sufficient because the Act does not provide a private right of action?
  2. Whether Ms. Palmiter’s claim for wrongful discharge is legally sufficient?

With respect to the first question, the Hospital asserted that there was no legislative intent to create a private remedy under the MMA because the statute authorizes the Department of Health to impose civil penalties for violations, and does not include a remedy or time frame for bringing a private action. The Superior Court disagreed, noting that the Department of Health does not have exclusive jurisdiction to enforce the antidiscrimination provisions of the MMA. Rather, the Act authorizes employers, not the Department of Health, to discipline employees for being under the influence of medical marijuana in the workplace.  The Superior Court also found that the absence of an explicit time frame for bringing a private action did not evidence a lack of legislative intent to create a private right of action.

The Superior Court affirmed the trial court’s reasoning that the employment provision of the MMA would be “rendered meaningless if an aggrieved employee could not pursue a private cause of action and seek to recover compensatory damages from an employer” that violated the Act.

The Superior Court also rejected the Hospital’s arguments with respect to the second question, noting that “[t]he enactment of the MMA in 2016 reflects a public policy designed to protect certified users of medical marijuana from employment discrimination and termination.” The Superior Court found no bar to Ms. Palmiter’s claim for wrongful termination in violation of public policy.

The Superior Court’s decision aligns with a recent decision from the Eastern District of Pennsylvania, Hudnell v. Thomas Jefferson University Hosps., Inc., C.A. 20-01-01621, 2020 U.S. Dist. LEXIS 176198 (E.D. Pa. Sept. 25, 2020), which concluded that Pennsylvania would find an implied private cause of action under its MMA.

Employers should be familiar with the employment provisions of the MMA and understand that, in addition to civil penalties from the Department of Health, violations of the Act could result in a civil suit by an aggrieved employee. For more on marijuana in the workplace, listen to our podcast here, and see our fall 2020 Pennsylvania marijuana update on accommodations and pre-employment testing here.

Effective September 7, 2021, staff in New Jersey’s public and private health care facilities and congregate settings deemed “high risk” must receive the COVID-19 vaccine or, alternatively, be subject to COVID-19 testing one to two times per week.  A list of the type of impacted facilities is available here.

By September 7, health care facilities with unvaccinated employees must have a plan for regular testing.  For employers not currently using a test-based strategy, this provides barely a month to ascertain the vaccination status of all employees and roll out a plan for regular COVID-19 testing, as required by the state.  In accordance with EEOC guidance, employers may require employees to show proof of vaccination (read our prior coverage about employment issues related to the COVID-19 vaccine).

Although regular COVID-19 testing is an option under New Jersey’s new directive, the state is clearly pushing health care employers to mandate vaccination for their employees, stating “Private facilities are strongly encouraged to consider instituting requirements above and beyond the baseline that will be required by the State.”  In its announcement, the state also made clear that the testing option provided under the new rule does not alter any employer’s existing policy requiring vaccination as a condition of employment.

According to media reports, Governor Murphy has suggested that the state may move to require all staff at these facilities to be vaccinated if vaccination rates do not increase.

Ballard Spahr’s labor and employment team is ready to assist any employers seeking to roll out a mandatory vaccination program or a COVID-19 testing program.

Yesterday, the United States Senate confirmed Gwynne Wilcox and David Prouty to seats on the National Labor Relations Board (Board). These confirmations seal the deal on a Democratic majority on the Board and undoubtedly will mean re-visiting much of the Board precedent established under the Trump-era Board (which, in turn, had overturned many of the Obama Board’s most controversial decisions).

Wilcox is a partner at Levy Ratner in New York and will be the first Black woman in NLRB history to serve on the Board. Wilcox will fill a vacant seat.

Prouty is General Counsel for the Service Employee International Union (SEIU) Local 32BJ. Prouty will fill Republican appointee William Emanuel’s seat when his term expires on August 27, 2021.

The appointments of Wilcox and Prouty will put the Board at its full 5 member strength with a 3-2 Democratic majority.

Due to the change in the political makeup of the Board, employers can expect the Biden Administration to fulfill campaign promises to shift from the more employer-friendly, Trump-era Board decisions to decisions that reflect a union- and employee-friendly focus, giving greater protections to worker organizing, collective bargaining, and the right of employees to engage in protected, concerted activity.

Employers should pay close attention to new NLRB decisions as they may have a significant impact on businesses’ interaction with their workers, as well as workplace policies and procedures.  Because federal labor laws apply, in some respects, to both unionized and non-union workplaces, the Biden Board’s decisions will be important even for those companies without unionized workforces.  

Below are a number of significant developments related to COVID-19 that impact businesses of all sizes, across industries:

DOJ Says Vaccine Mandates Not Prohibited by EUA

This week, the Department of Justice (DOJ), Office of Legal Counsel (OLC) released to the public, a memo dated July 6, 2021. The memo can be found here and discusses vaccine mandates and the OLC’s position that the Food, Drug, and Cosmetic Act’s (FDCA) Emergency Use Authorization (EUA) provisions do not prohibit employer vaccine mandates. The opinion comes at an inflection point in time as employers nationwide debate whether to mandate the now widely-available COVID-19 vaccine to their employees or simply recommend it.

Substantively, the OLC opinion states that the language of the FDCA EUA provisions specify only that certain information be provided to potential vaccine recipients and does not prohibit entities from imposing vaccination requirements.

The OLC memo is a welcome opinion for some employers and business entities, including a number of public entities, that have issued vaccine mandates for employees in recent days and weeks.

A Trend Toward Mandatory Vaccines?

California will require all state employees and healthcare workers to be vaccinated or be subject to weekly COVID testing and mask requirements in order to remain in the workplace. All employees of the City of New York will also be required to be vaccinated or subject to weekly testing. The Mayor of New York City asked that all businesses in the City think about mandating vaccines for their employees. The Department of Veterans Affairs also issued a vaccine mandate for all of its healthcare workers. Finally, some reports indicate that President Biden will announce this week that COVID vaccines will be mandated for all federal employees or, if an employee refuses vaccination, they will be subject to frequent testing and additional mask requirements.

In addition to the DOJ’s memo, at least two federal courts have ruled in favor of vaccine mandates. See our blog post on this here.  At this point, it seems that a challenge to a vaccine mandate based on the vaccine’s EUA status is unlikely to be successful. It could also be that these arguments become moot should the vaccines receive full FDA approval in the near future. However, some states have barred “vaccine passports” so businesses should continue to monitor laws, guidance and cases related to these issues and update their policies to ensure the measures taken are appropriate in the jurisdiction in which they operate.

Updated Mask Guidance for Vaccinated Individuals

On Tuesday, July 27, 2021, the Centers for Disease Control (CDC) updated its mask guidance for vaccinated individuals. In May, the CDC changed its mask guidance to state that fully vaccinated individuals could resume most pre-pandemic activities without wearing a mask. However, due to the recent rise of COVID-19 cases due to the Delta variant, the CDC has changed course.

The new guidance states that even fully vaccinated individuals should wear a mask in indoor public places if they are “in an area of substantial or high transmission.” The CDC has placed a detailed map of the U.S. on its website, here, where you can search for a location by County and State in order to determine whether an area is one with “substantial or high transmission.” The classification for a particular County will be fluid and will change based on the number of cases recorded on a weekly basis.

For employers with operations in multiple counties and/or states, it will likely be difficult to keep track of each location’s classification in order to determine whether vaccinated individuals should be required to mask up indoors.  Businesses should also pay attention to state and local guidance which could provide for more restrictions due to the uptick in COVID-19 cases because of the Delta variant.

 

On July 21, 2021, in a 3-1 decision, the National Labor Relations Board (“NLRB”) ruled that a union does not violate federal labor law with the display of the infamous “Scabby the Rat,” and other similar inflatable symbols, at workplaces that do not employ those union’s workers.   Former NLRB General Counsel Peter Robb, a Trump appointee, had long attempted to kill off Scabby, arguing that using the balloons at secondary protests was an unlawful attempt to threaten and coerce neutral parties.  However, two Republican NLRB members, John Ring and Marvin Kaplan, joined Democratic Chair Lauren McFerran to dismiss the case.  Ring and Kaplan based their decision on First Amendment grounds, while McFerran’s concurrence explained that NLRB precedent required the dismissal.

Several federal court opinions had previously given Scabby a reprieve, determining  that unions’ use of inflatable rats and other balloons at protests is protected under the First Amendment.

The matter stems from a 2018 demonstration featuring Scabby by the Operating Engineers Local 150 in front of an RV trade show.  The union was engaged in a dispute with a company that did business with an RV supplier.

The NLRB’s decision makes it easier for Scabby and other similar inflatable symbols or balloons to appear at any employer’s workplace.  In the event such union demonstrations arise, employers should consult with labor counsel for further advice.

In a closely-watched case that may be a preview of other court decisions involving COVID-vaccination mandates for students returning to school and employees returning to the workplace, a federal district court has denied a request to enjoin Indiana University’s COVID-19 vaccine policy for students. The policy includes a requirement that students provide documentation proving that they have been vaccinated – a so-called “vaccine passport.”

A group of eight students had alleged that the public school’s requirement that they be vaccinated, or else qualify for an exemption or take time away from campus in the fall, violated their privacy and body-autonomy rights under the U.S. Constitution. The U.S. District Court for the Northern District of Indiana disagreed. It found that Indiana University’s rule – which would not have prevented the students from attending classes remotely, deferring their enrollment, or following certain masking and social distancing rules – was made in the legitimate interests of public health.

In denying the students’ request that the court enter an injunction to suspend the policy, the court weighed the efficacy of vaccinations to protect against the spread of COVID-19, as well as the many avenues for seeking exemptions from vaccination the school provided. Indeed, of the eight plaintiffs, seven had or would qualify for some form of exemption. Therefore, the court found, the school’s rules properly balanced between the students’ due process rights under the U.S. Constitution and the school’s own right to protect against threats to its school community.

The students have indicated that they will appeal this ruling, but in the meantime IU’s vaccine mandate remains in effect. The district court’s ruling sends another strong signal that vaccine requirements likely pass legal muster when they include appropriate exemptions for those who must opt out for medical or religious reasons, as well as other practical considerations. Employers, many of whom took note of the recent Texas federal court decision in Bridges v. Houston Methodist Hospital, approving a vaccine mandate by a healthcare employer, should continue to monitor cases and update their policies to ensure appropriate measures for keeping their employees safe upon their return to work this summer or fall.

On July 21, 2021, the U.S. Department of Labor (“DOL”) announced that a wide range of government contractors would be required to pay private sector employees at least $15 per hour, in a plan to carry out President Joe Biden’s executive order signed this past April.  Our blog post about President Biden’s executive order requiring the wage increase can be found here.

The new wage floor is set to take effect on new or extended contracts beginning on January 30, 2022.  The minimum wage would rise by $4.05 from its current level of $10.95.  In addition, the regulation would provide annual increases to keep pace with inflation, eliminate the lower minimum wage for tipped workers on federal contracts by 2024, cover workers with disabilities, and outfitters and guides operating on federal lands.  The DOL predicts that the pay raise would impact approximately 327,000 workers.

The DOL will accept public comments on the proposed rule for the next 30 days.  President Biden’s executive order requires that the DOL finalize the regulation by November 24th of this year.

Employers with federal contracts should carefully review their agreements to determine whether, and how, the proposed rule could impact rates of pay.  In the event that the proposed rule becomes final, going forward employers will need to be prepared to enter into agreements that comply with the new terms.

On March 29, 2021, the City of Philadelphia enacted an ordinance providing for paid Public Health Emergency Leave (PHEL). Our blog post on the requirements of the leave can be found here. That leave requirement is now expired and employers no longer need to provide this leave.

The PHEL’s sunset provision tied its expiration specifically to the rescission or expiration of the Pennsylvania Governor’s Proclamation of Disaster Emergency. However, “public health emergency” was defined much broader in the ordinance and included any “declared or proclaimed emergency related to a public health threat, risk, disaster or emergency that affects Philadelphia that is made or issued by a federal, state or local official with the authority to make or issue such a declaration or proclamation.” As such, there was confusion as to when the PHEL would expire.

On June 10, 2021, the Pennsylvania Assembly rescinded the Governor’s Proclamation of Disaster Emergency. Due to the conflict with regard to the definition of “public health emergency” in the PHEL ordinance, some believed the PHEL remained in effect even after the rescission of the Governor’s Proclamation of Disaster Emergency.

However, this week, the City updated its website to state “This March 29, 2021 Public Health Emergency leave expired on June 10, 2021. Eligible employees who are unable to work for covered reasons on the day of expiration may use any remaining Public Health Emergency Leave balance for one week following this expiration date.” Based on this publication by the City, as well as the sunset provision in the PHEL ordinance, it is safe to say that PHEL leave expired as of June 10, 2021, with the exception of certain situations where leave could be used by employees through June 17, 2021, and that employers are no longer required to provide such leave to employees.