The Occupational Safety and Health Administration (”OSHA”) has issued its long-awaited Emergency Temporary Standard requiring employers with 100 or more employees to mandate that each worker be fully vaccinated, or subject to at least weekly testing, by January 4. Public employers are not covered by OSHA and will not be subject to the rule.  In addition, states that have opted-out of OSHA and are covered by their own state plans instead will have 30 days to implement the ETS or their own standard which much be just as protective or face legal action from OSHA.  A list of those states is on page 209 of the ETS.

If employees cannot show proof of vaccination, if they do not produce a negative test, or if they test positive for COVID-19, the rule requires that those employees be removed from the workplace. There is no exception for employees who have previously had COVID-19 but who are not vaccinated.  Employers are not required to provide paid time off to any employee during such periods of removal.

The following types of employees are excluded from the requirements:  those who telework, those who work from locations where no other people are present, and those who work exclusively outdoors.  In addition, workplaces subject to the federal contractor executive order are not covered, and healthcare workers covered by the ETS issued by OSHA this summer are not covered.  Additional requirements will be taking effect for certain healthcare workers under the newly-issued CMS vaccine mandate rule.

The 100-employee threshold in the rule is based on the entire workforce, including part-time employees, at any time the ETS is in effect.  And, all employees of the organization are counted, rather than using a location- or facility-specific approach.  Independent contractors are not counted.  Regarding how to count staffing agency workers, the ETS provides:  “In scenarios in which employees of a staffing agency are placed at a host employer location, only the staffing agency would count these jointly employed workers for purposes of the 100-employee threshold for coverage under this ETS.” OSHA noted that it is beginning with companies that have 100 or more employees because it is “confident” that these companies “have the administrative capacity to implement the standard’s requirements promptly” but will consider whether to expand the applicability to smaller employers in the future.

Employers are not required to cover the cost of COVID-19 testing for unvaccinated employees, absent another law or agreement stating otherwise.  Employers providing testing as an alternative for unvaccinated employees with medical or religious exemptions may still need to cover the cost of testing because of prior EEOC and DOL guidance and decisions on the cost of required medical examinations (and the time spent on those examinations).  Employers also are not required to pay for providing masks for unvaccinated employees under the ETS.

Employers are required to maintain records of employee vaccination and of test results for unvaccinated employees.  These records must be maintained as confidential medical records, at least for as long as the ETS is in effect.  The method for maintaining the records should also comply with the existing ADA requirements for confidential medical records.

Additionally, although the deadline to complete vaccination or begin weekly testing is January 4, employers must take certain actions starting no later than December 5:

  • Employees who remain unvaccinated must wear masks in the workplace.  OSHA will accept any mask that completely covers the worker’s nose and mouth; is made with two or more layers of a breathable, tightly woven fabric; and secures to the head with ties, ear loops or elastic bands that go behind the head; and
  • Employers must provide up to four hours of paid time off to employees in order to receive the vaccine or recuperate from any side-effects upon receiving the vaccine.

Employers should examine the size of their workforce and ensure compliance by each deadline. Employers not enforcing OSHA’s rule could face a fine of up to $13,653 for each serious violation, meaning situations where an employer should have known about the potential risks of not enforcing the rule but failed to address them. A willful violation, when an employer deliberately ignored this rule, could entail a fine as high as $136,532 per violation.

Covered employers should keep in mind that the requirements of the ETS are the floor of what must be done.  Employers can choose to impose stricter requirements that are consistent with applicable law, such as requiring employees to be vaccinated unless they have a religious or medical accommodation.  In addition, the rule does not absolve employers of any collective bargaining obligations they may have regarding implementation or any stricter requirements imposed by law.

The Department of Labor (“DOL”) announced publication of the Dual Jobs final rule. This rule finalizes the DOL’s proposal to withdraw one portion of the Fair Labor Standards Act (“FLSA”) tip rule that was finalized in 2020. Employers who employ workers engaged in tipped work, like servers and bartenders, need to consider how this rule impacts their operations and tipped employee pay.

Specifically, the DOL amended its regulations to clarify that an employer may only take a tip credit when its tipped employees perform work that is part of the employee’s tipped occupation. Work that is part of the tipped occupation includes work that produces tips (e.g., a nail technician performing a manicure), as well as work that directly supports tip-producing work (e.g., a nail technician cleaning manicure tools, or the salon), provided the directly supporting work is not performed for a substantial amount of time. This differs from the previous iteration of the rule which allowed an employer to take a tip credit for the time an employee performed related, non-tipped duties as long as those duties were performed contemporaneously with, or for a reasonable time immediately before or after, tipped duties.

The final rule, found here, will go into effect on December 28, 2021. Now is the time for employers to review their practices and prepare for compliance. Ballard Spahr’s Labor & Employment Group is prepared to help restaurants, hotels and other establishments whose employees rely on tips navigate federal regulation as well as similar issues under corresponding state laws.

On Monday, as it has done periodically throughout the pandemic, the Equal Employment Opportunity Commission (“EEOC”) updated its now-lengthy technical assistance related to COVID-19. This new guidance comes as U.S. employers increasingly have abandoned encouraging or incentivizing vaccinations for their workforces in favor of vaccine mandates, in an effort to get their employees back to work on site (for those who have been working remotely) and in a determined effort to curb the spread of the disease among those who have been working throughout the pandemic or who are just returning to the workplace.

“Title VII requires employers to accommodate employees’ sincerely held religious beliefs, practices, and observances absent undue hardship. This update will help safeguard that fundamental right as employers seek to protect workers and the public from the unique threat of COVID-19,” said EEOC Chair Charlotte A. Burrows.

As more businesses have imposed vaccine mandates, either on their own or in response to state or local requirements, many employers have experienced an unanticipated surge in employee requests for religious exemptions and accommodations. The new guidance focuses on this development. Key updates to the technical assistance include:

  • Employees and applicants must inform their employers if they seek an exception to an employer’s COVID-19 vaccine requirement due to a sincerely held religious belief, practice, or observance.
  • Title VII requires employers to consider requests for religious accommodations but does not protect social, political, or economic views, or personal preferences of employees who seek exceptions to a COVID-19 vaccination requirement.
  • Employers that demonstrate “undue hardship” are not required to accommodate an employee’s request for a religious accommodation.

See the full technical guidance here. Ballard Spahr’s Labor & Employment Group has assisted employers across the nation in developing vaccination programs and address employee requests for exemptions and accommodations. Through the COVID-19 Resource Center our lawyers have kept our clients and friends informed on COVID-19 developments throughout the pandemic.

A three-judge panel for the United States Court of Appeals for the First Circuit affirmed the lower court’s order denying plaintiffs’ motion for a preliminary injunction against Maine’s Covid-19 vaccine mandate requiring healthcare workers to be vaccinated. Plaintiffs in the case had argued that exceptions to the mandate must be permitted for religious objections. Judge Sandra Lynch wrote the opinion for the court and rejected plaintiffs’ arguments based on the Constitutional Free Exercise Clause, Supremacy Clause, and Title VII. The unanimous opinion stated that “when a neutral and generally applicable law incidentally burdens free exercise rights, we will sustain the law against constitutional challenge if it is rationally related to a legitimate governmental interest.” As such, the panel affirmed the denial of plaintiffs’ request for a preliminary injunction and allowed Maine’s Center for Disease Control’s vaccine mandate to be enforced.

Plaintiffs filed an appeal with the U.S. Supreme Court yesterday. Justice Breyer had previously declined to hear plaintiffs’ appeal because the merits of the case had not yet been decided. Following Tuesday’s First Circuit decision, the Supreme Court may opt to hear the case, which would require the Court to consider the underlying questions of constitutionally protected religious liberties in the context of the Covid-19 pandemic. Previously, the Supreme Court found in Prince v. Commonwealth of Massachusetts (1944) that “the right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death.” The Prince case rejected religious exemptions for child labor laws, but the Court’s holding may have applicability to the present pandemic.

On a more practical level, the First Circuit’s decision imposes a definitive obligation for Maine’s healthcare workers to be vaccinated regardless of their potential religious or philosophical objections.  The opinion will likely carry weight in other lawsuits raising similar challenges to vaccine mandates.

The First Circuit’s decision precedes the Biden administration’s OSHA federal vaccine mandates, which will be issued imminently.

On Tuesday evening, Occupational Safety and Health Administration (OSHA) sent its proposed vaccine mandate to the White House for final review.  OSHA’s proposed rule was drafted in response to President Biden’s September 9 request that OSHA require companies with 100 or more employees to mandate coronavirus vaccinations or weekly testing. Based on the President’s request, OSHA will also require covered businesses to give workers paid time off to get vaccinated and to recover from any side effects from vaccination. The details of the proposed rule are not yet public.

The new requirements are expected to take the form of an emergency temporary standard and will undergo an expedited review process before taking effect. The standard will likely not be open to public comment and will take effect once the Office of Management and Budget (OMB) completes its review and the final emergency temporary standard is published in the Federal Register.

On Tuesday, October 5, 2021, Governor Phil Murphy signed legislation expanding state law protection against age discrimination for those employees who are 70 years of age or older.  The legislation amends the New Jersey Law Against Discrimination (“NJLAD”) in a several important ways.  First, the amendments remove language from the NJLAD that previously permitted employers to forego hiring individuals or offering them promotions if they were 70 or older.  As a practical matter, that provision applied only to smaller businesses who were not covered by the federal Age Discrimination in Employment Act (“ADEA”) which contains no such carve out for older workers.  Thus, the impact of this change likely will be limited.  Second, in a change with similarly narrow effect, workers who are not hired or are denied advancement because they are 70 or older are no longer limited under the NJLAD to filing a claim with the State Attorney General for reinstatement and back pay with interest.  Under the amendments, they have the same avenues of redress and may recover the same damages as younger victims of discrimination.  Finally, the amendments make it more difficult for public entities and public institutions with tenure-eligible employees to set a mandatory retirement age. Previously, public employers could show that “the retirement age bears a manifest relationship to the employment in question” in order to set a mandatory retirement age for a position.  The amendments remove that language.  Now, to set a mandatory retirement age, public employers must show that the employee “is unable to adequately perform the person’s duties.”

The sponsors of the legislation reasoned that these amendments were in line with current workforce demographics and the “graying” of the Garden State’s workforce; people generally are working longer, due to financial need and/or because they continue to have the skills, ability and experience to be productive members of the workforce.

Employers, especially smaller employers, should review any mandatory retirement policies or requirements they have in place.  For all employers, age should not be a consideration in making hiring or promotion decisions.

As we previously posted, the City of Philadelphia is mandating healthcare workers and those who work, volunteer, or attend classes at higher education institutions in the city receive the COVID-19 vaccine.  The initial deadline for all covered individuals to be vaccinated or have a medical or religious exemption was October 15, 2021.

On October 6, 2021, the City announced an extension of the deadline.  According to the Health Department, this extension is to ensure that healthcare institutions and area universities are not left shorthanded and can keep operating at full capacity while waiting for people to get vaccinated.

Updated Deadlines:

  • Healthcare staff in hospitals and long-term care facilities and everyone in higher education settings must receive their first dose of the COVID-19 vaccine by October 15 and submit to regular testing. Health care workers must undergo testing twice per week.  Higher education staff and students have the option of one PCR test or two antigen (rapid) tests each week.
  • Both healthcare workers in hospitals and long-term care facilities and higher education staff and students must receive their second dose by November 15.
  • Healthcare workers outside of hospitals and long term care facilities have until October 22 to receive their first dose of the COVID-19 vaccine. Until fully vaccinated, they must be tested using rapid or PCR testing twice per week.
  • All healthcare workers must receive their second dose by November 22.

Employers may choose to continue enforcing any earlier mandatory vaccination deadlines.  Ballard Spahr’s labor and employment team is ready to assist any employers implementing a mandatory vaccination program that complies with the City’s Emergency Regulation.

In a statement that portends additional scrutiny of the “working conditions” of college and university athletes, National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo has publicly stated her view that scholarship athletes at academic institutions are employees who have the right to organize and to be protected from discrimination and retaliation when they act concertedly to improve their working conditions.

In a memo issued on September 29, 2021, Abruzzo declined to refer to these athletes as “student athletes,” explaining that the term “student athletes” was coined for the purpose of denying college athletes workplace protections.  Instead, she asserted that  these athletes meet the broad definition of “employee” under the National Labor Relations Act (“NLRA” or “Act”).

The memo announces that, in certain cases, Abruzzo will consider it a violation of the Act to misclassify such players as “student athletes,” or to lead them to believe that they are not entitled to the Act’s protections.  Further, because these athletes perform services for, and are subject to the control of, the NCAA and their colleges, Abruzzo said the NLRB will consider pursuing a joint employer theory of liability for NLRA violations.

Abruzzo’s memo proposes a departure from the NLRB’s approach in Northwestern University, 362 NLRB No. 167 (2015), where the NLRB expressly declined to resolve the issue of whether college scholarship football players are employees under the NLRA, but found that, as a matter of policy, it would not exercise jurisdiction over student athletes.  In Northwestern, the NLRB noted that working conditions of college athletes are generally set by the NCAA and the athletic conferences in which they play, and thus, union organizing should occur at the conference level, rather than at the school level.  The Northwestern Board concluded that because many of these conferences include non-represented athletes and athletes at public universities over which the NLRB does not have jurisdiction, it would not promote labor stability to exercise jurisdiction.

The September 29 memorandum, GC 21-08, also reinstates GC 17-01, which Abruzzo’s predecessor rescinded in December 2017.  That 2017 memorandum advocated not only for the NLRB exercising jurisdiction over alleged unfair labor practices involving scholarship football players, but also over faculty at religious institutions and other university faculty and students. On March 12, 2021, the NLRB also withdrew a proposed rule that would have exempted undergraduate and graduate student workers from the right to collectively bargain.

Abruzzo’s memo marks the next chapter in her attempt to expand the scope of the NLRA and to push for more aggressive enforcement actions.  These efforts go far beyond student athletes and are likely to touch on every workplace subject to the NLRB’s jurisdiction, whether they have unionized employees or not.

On September 24, 2021, the White House issued Guidance explaining that Federal contractors and subcontractors with a covered contract or contract-like instrument must comply with the following workplace safety protocols:

  1. COVID-19 vaccination of covered contractor employees, except where an employee is legally entitled to an accommodation;
  2. Compliance with masking and physical distancing while in covered contractor workplaces; and
  3. Designation of a person or persons to coordinate COVID-19 workplace safety efforts at covered contractor workplaces.

The phrase “contract and contract-like instruments” is not as broad as widely reported in the press. It encompasses a new contract, new solicitation, extension or renewal of an existing contract, and exercise of an option on an existing contract (collectively “new contracts”), if

  • It is a procurement contract for services or construction;
  • It is a contract for services covered by the SCA;
  • It is a contract for concessions, including any concessions contract excluded by the Department’s regulations at 29 CFR 4.133(b); or
  • It is a contract entered into with the Federal Government in connection with Federal property or lands and related to offering services for Federal employees, their dependents, or the general public.

For covered contracts awarded prior to October 15 where performance is ongoing, the requirements must be incorporated when an option is exercised or an extension is made. For new contracts, the requirements must be incorporated into contracts awarded on or after November 14.

The Guidance also includes a Q&A section with details on the vaccine and safety protocols, workplaces, scope and applicability of the Guidance, and compliance.

Businesses entering into covered contracts with the federal government, or exercising options or extensions in the coming weeks or months, should be prepared to implement the vaccine and masking guidance, and to adjust their practices to maintain compliance with any new guidance in the coming months.

Last week, the Eastern District of Pennsylvania ruled that an employee whose employment was terminated on the same day she disclosed to her employer that she had tested positive for COVID-19 sufficiently pled a claim of “regarded as” disability discrimination under the Americans with Disabilities Act (“ADA”) and the Pennsylvania Human Relations Act (“PHRA”).  In denying the employer’s motion to dismiss the employee’s claims, the court signaled that COVID-19 may be considered a disability under the ADA and PHRA, a potentially significant development.

The court cited recent guidance jointly developed by the Department of Health and Human Services and Department of Justice stating that certain forms of COVID-19 can “substantially limit major life activity,” including one’s respiratory function, gastrointestinal function, and brain function, for periods lasting months after first being infected.  The court also relied on the employee’s disclosure of symptoms common to certain forms of COVID-19 that can carry longer-term impairment of major life function, such as loss of taste and smell, in declining to dismiss the claims.  In so doing, the court rejected the employer’s main argument that COVID-19 was “transitory and minor,” which designation would have excluded the impairment from being the basis of a viable “regarded as” claim.  Also significant to the court was the fact that the employee was terminated the very same day she disclosed to her employer that she had tested positive for COVID-19.  The court noted that the immediate temporal proximity between the employee’s disclosure of her COVID-19 symptoms and her positive test result and her termination raised a strong inference that her employer regarded her as disabled.

The opinion is available here.

Given the procedural posture of this case, i.e., the court denied a motion to dismiss, it is still an open question as to whether an employee with COVID-19 qualifies for one of the ADA’s three categories of disability, which include (1) a physical or mental impairment that substantially limits one or more major life activities; (2) a record of such an impairment; or (3) being regarded as having such an impairment.  The lawsuit is one of several in courts across the country considering whether COVID-19 may rise to the level of a disability.  If contracting COVID-19 meets the definition of a disability, a worker with COVID-19 would be entitled to reasonable accommodations, which may include telework or leave.  Accordingly, employers should stay tuned to see how courts address this important question.