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Do you have 100 or more employees? Are you a federal government contractor? A healthcare provider? A large entertainment venue? If the answer to any of these questions is yes—and as you’ve already probably heard—President Biden has instructed the Occupational Health and Safety Administration (OSHA) to exercise its rulemaking authority to require all such employers to either mandate COVID-19 vaccination or to require weekly COVID-19 testing. You should review your current COVID-19 policies and President Biden’s COVID-19 Action Plan, particularly the new executive orders and mandates announced this past week, which cover about 100 million Americans, or two-thirds of the U.S. workforce.

For the moment, covered employers have to sit tight: Biden’s announcement last week was simply that OSHA will issue the new vaccination rule “in the coming weeks.” We will continue to update this blog on the many complicated issues arising from the anticipated OSHA rules, including how to comply with the rule when various Republican state governors and right-leaning interest groups have already promised litigation to challenge the rule from the moment the rule is implemented.

For now, however, here are the key takeaways for employers:

  • Employers (100+ Employees): OSHA is developing a rule that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or to require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. Given the practical challenges with implementing weekly testing, many employers may simply mandate vaccination to comply with this new rule—and many already have. What happens if they don’t? This requirement is to carry substantial fines to be enforced by OSHA. In addition to the mandate, OSHA is developing a rule that will require employers with 100+ employees to provide PTO for the time it takes workers to get vaccinated and to recover.  
  • Federal Workers & Contractors: The President also signed an Executive Order (EO) to require all federal executive branch workers and contractors that do business with the federal government to be vaccinated. This EO eliminates the exception to the July vaccination mandate for federal employees and contractors that allowed them to opt out if they wore masks, socially distanced, and were tested for COVID-19 at least weekly. 


Continue Reading Vaccinating the Unvaccinated: Employers Take Heed

Wednesday, September 22nd at 12:30pm ET

President Biden promised a 2021 “Summer of Joy” as the ongoing COVID-19 pandemic is brought under control. Instead, employers face continuing unpredictability in the face of a pandemic—and CDC guidance—that just keeps changing. With a pandemic that is not nearly behind us, what should an employer do now? Mandate

U.S. employers have known for a while that they can require their employees to get an FDA-approved Covid-19 vaccine. As recently as a couple of months ago, however, most employers weren’t doing that, with a few exceptions in healthcare and on Wall Street that were either celebrated or notorious, depending on your view.

The balance has clearly shifted now.

One survey in February 2021 found that almost 80% of employers chose not to mandate vaccination because their employees were personally opposed to it. As one of our clients put it: “If we mandated, half our workforce would quit.” So the initial stance taken by most employers was essentially an employee relations choice, and employers “strongly encouraged,” but didn’t require, vaccination.

It looks like months of “strong encouragement” didn’t move the needle one way or the other. Our unscientific guess (but one generated by endless discussions with our clients) is that employees who were personally inclined to get vaccinated with or without a mandate got vaccinated, and those who were opposed didn’t—which is to say that, arguably, few were “encouraged” to do anything they weren’t going to do anyway. Result: only about 50% of the US population has been fully vaccinated, according to the CDC.
Continue Reading Vaccination: To Mandate or Not to Mandate?


During the Trump years, the National Labor Relations Board (meaning, the actual five-member Board in Washington, whose decisions drive interpretations of federal labor law) got a lot less friendly to organized labor, and a lot friendlier to employers. That meant a lot of things, including making it easier for unions to prove that two employers were really one “joint” employer, harder for employees to organize, and harder for employers to unilaterally change terms and conditions of employment without bargaining.

The Board is less like the lifetime-appointed Supreme Court and more like your new boss who doesn’t care how your old boss did things. That’s because Board members serve out fixed but limited terms—meaning that a new Presidential administration brings new Board members when the terms of existing Board members expire. While the Board claims to rely on its own precedents (and, to some extent, does), Board members are fundamentally political appointees, and their interpretations of labor law mirror the labor agenda of the Presidents who appoint them.

Enter Biden’s appointment of Gwynne Wilcox to the Board on May 26. Biden has not exactly been subtle about his labor policy agenda: as he announced the American Jobs Plan on March 31, he reminded us that he’s “a union guy. I support unions. Unions built the middle class. It’s about time they start to get a piece of the action.”

A piece of the action, indeed. Ms. Wilcox clearly knows what she’s doing when it comes to federal labor law, but what she’s doing is deeply informed by what she has done. She’s a dyed-in-the-wool union-side attorney from a law firm that exclusively represents unions, and from a position with one of the largest and most powerful unions in the Northeast, which is part of the SEIU.
Continue Reading The New NLRB: Protecting Workers from Their Own Employers?

Last week, the Trump-era independent contractor classification rule was officially eradicated by the U.S. Department of Labor, (“DOL”) due to its apparent inconsistency with the Fair Labor Standards Act (“FLSA”). The rule, which we previously covered here, provided a 5-factor “economic reality” test for determining whether workers are independent contractors or employees. The two

For years, employee interest in unions has dwindled. But a pandemic, persistent income inequality and high unemployment—not to mention the most pro-union Presidential administration in generations—have all converged to flip that script.

5,800 workers at an Amazon warehouse in Bessemer, Alabama are currently voting whether to join a union in an election that runs through March 29th. The current unionization efforts have captured national attention and drawn support from both sides of the aisle, including Republican Senator Marco Rubio. A win in the election would be a major victory for the labor movement. Amazon is the second-largest private employer in the United States, and it has avoided unionization at all of its U.S. facilities up to this point. Is this recent unionization effort a reflection of a larger change brewing in the labor world?


Continue Reading Are Unions Primed for a Comeback?

As we have previously noted on this blog, a central aim of the Trump administration was to take aim at—and rescind—Obama-era labor rules. The Trump Department of Labor (DOL) took what was perceived as a consistently pro-business stance, reversing worker-friendly Obama-era rules and issuing new rules favorable to employers. With the proverbial pendulum now swinging back towards worker protections under the Biden administration, two rules with a significant impact on employers are likely to change: independent contractor/employee classifications, and the “joint employer” doctrine.
Continue Reading The DOL Announces Plans to Rescind Two Final—and High-Impact—Rules

The impact of the legal definition of “employee” versus “independent contractor” under the Fair Labor Standard Act (“FLSA”) and other employment laws cannot be understated. The FLSA’s minimum wage and overtime requirements—along with a vast array of other legal obligations employers owe to employees—simply do not apply to independent contractors. Unhelpfully, various regulatory agencies and courts have looked in the past to similar, but not quite identical, tests of independent contractor status. With so much riding on the right classification both in terms of lawsuits and dollars, any clarification of which test an employer should look to is absolutely critical guidance to U.S. businesses.

Enter the Department of Labor (“DOL”) and its January 7, 2021 publication of the final rule on classifying “Independent Contractor Status under the Fair Labor Standards Act” (the “Final Rule”), which goes into effect on March 8, 2021. 
Continue Reading Independent Contractor Final Rule (For Now)

On January 20, 2021, Vice President Joseph R. Biden Jr. will be sworn in as the 46th president of the United States. Whichever side of the political spectrum you fall on, there can be no question that this is going to signal changes – and not all of them positive – for employers. For all

The independent contractor/employee classification conundrum is nothing new. Courts, state legislatures, and even the IRS have developed a slew of multi-factor tests to assess whether a worker is an employee or independent contractor. Mixed among these tests is arguably the most significant-the U.S. Department of Labor’s six-factor test, which is now being given a much-needed makeover. On September 22, 2020, the DOL released a Notice of Proposed Rulemaking, announcing an employer-friendly proposed rule that nixes a balancing test in favor of a test that focuses on the two factors that matter.

As the rule currently stands, the DOL has a six-factor test to assess the worker’s economic dependence on the business, including: (1) the business’s control over the workers; (2) the permanency of the relationship; (3)the workers’ investment in facilities and equipment; (4) the skill required to complete the work; (5) the opportunities for profit or loss; and (6) the extent to which the workers’ services are integrated into the business. No one factor is given more weight than any other.
Continue Reading It Takes Two: The DOL’s Proposed Rulemaking Regarding FLSA Worker Classification