COVID-19 Litigation

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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. 

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Continue Reading Vaccinating the Unvaccinated: Employers Take Heed

Sending a clear message to employers and employees alike on the prickly subject of mandatory vaccination programs, Texas federal Judge Lynn N. Hughes just dismissed outright a lawsuit brought by 117 employees of a Houston hospital, challenging their terminations for refusal to be vaccinated. The court rejected the employees’ wrongful termination claims under Texas state law as well as their arguments that the Hospital’s policy violated federal law.

It’s also not just the result, but the strong language of the decision, which should give employers comfort that a mandatory vaccination program is lawful.

Background

On April 1, 2021, the Houston Methodist Hospital announced a policy requiring all employees be vaccinated against COVID-19 at the Hospital’s expense by June 7, 2021. As that date approached, Plaintiff Jennifer Bridges and 116 other Hospital employees who had refused that vaccine, filed suit in the Southern District of Texas to block the Hospital’s vaccination requirement and their terminations, arguing that the Hospital’s mandatory vaccination program was unlawful.

Plaintiffs argued that the vaccination program constituted wrongful termination under Texas law and that the injection requirement also violated public policy. The Court rejected these arguments because the Plaintiffs did not establish the essential elements of the wrongful termination claim and because Texas does not recognize a public policy exception to an at-will employment relationship. Among the more absurd arguments advanced by the plaintiffs were that under the Hospital employees were being treated as participants in a human trial in violation of the Nuremburg Code. …
Continue Reading Judge Holds that a Hospital can Fire Employees Who Refuse the Vaccine

Original post on June 1, 2021 (“Making the Workplace a Safer Place: A Job for New York’s HERO Act”)

Key takeaways for New York employers from the NY HERO Act, as amended:

  • The NYS DOL must publish a model safety standard by July 5, 2021.
  • 30 days thereafter, New York employers must either adopt the model standard or create their own health and safety plan to prevent occupational exposure to airborne infectious diseases, which meets or exceeds the minimum requirements established by the NYS DOL.
  • Every employer must provide its prevention plan to its employees, within 30 days after adoption of the plan, within 15 days after reopening after a period of closure due to airborne infectious disease, and to any newly hired employee, upon hiring the new employee.
  • Employers must permit employees to establish joint employer-employee workplace safety committees, beginning on November 1, 2021.

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Continue Reading New York Gives Employers More Time to Be a HERO

The EEOC recently released its Enforcement and Litigation Data for Fiscal Year 2020, which ran from September 2019 to September 30, 2020—6 months before (September 2019 – March 2020) and 6 months during the COVID-19 pandemic (March 2020 – September 2020)—and several interesting trends emerged. Looking back, it is hard to say if the trends we see now would remain the same if everything hadn’t come to a complete halt exactly one year ago. Regardless, the EEOC started a new fiscal year on October 2020, and with the pandemic still raging on we can look to last year’s litigation data to provide hints about what we might expect as we go forward.…
Continue Reading Litigation Data: 6 Months With and 6 Without COVID-19

In 2020, California enacted several new laws affecting employers and their employment policies and procedures. While some of these laws are already in effect, others go into effect over the course of the next few months and years.

Laws That Took Effect in 2020

Workers’ Compensation COVID-19 Liability

By signing SB 1159 into law on September 17, 2020, California Governor Newsom codified his earlier issued executive order, which states that under certain circumstances, when an employee tests positive for COVID-19, there is a rebuttable presumption that the employee contracted the virus while at work and, therefore, said illness is covered by the employers’ workers’ compensation insurance coverage.…
Continue Reading 2021 Employment Law Spotlight: California

Last year, several major employment laws were enacted in the State of Illinois, and specifically in the City of Chicago. Employers in Illinois and/or Chicago should be reminded of these laws for 2021. Here are just a few of the highlights:

  • The Illinois Human Rights Act (“IHRA”) was amended to cover “single-employee” employers and to require employers to report to the Illinois Department of Human Rights (“IDHR”) all adverse judgements and rulings relating to harassment and discrimination;
  • Employees covered by the Chicago Fair Workweek Ordinance now have a private right of action against employers for violations of the law;
  • Chicago Enacts COVID-19 Anti-Retaliation Measures; and
  • Class action lawsuits under the Illinois Biometric Information Privacy Act (“BIPA”) are expected to continue to rise in 2021.

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Continue Reading 2021 Employment Law Spotlight: Chicago and Illinois

First Up: DOL Expands Overtime Exemption for Commission-based Retail and Service Workers

We all know that retail has been hit hard by the pandemic. When retail employees paid on a commission basis do go back to work, fewer of them will qualify for overtime, thanks to a Department of Labor (DOL) rule promulgated on Monday, May 18, 2020. While this sounds like a bad deal for employees, there’s a silver lining: the DOL issued another rule just today that will make compensating employees for staggered shifts and fluctuating workweeks easier—practices that are likely going to be critical components of a safe COVID-19 return-to-work plan in retail.

Monday’s final rule withdraws 60-year-old interpretive rules that limited employers’ ability to invoke Section 7(i) of the FLSA, which exempts certain commission-based employees in “retail or service establishments” from overtime eligibility. To qualify for the exemption, a business needs to show: (i) it is a retail or service establishment, as defined by the regulations; (ii) the employee’s regular rate of pay exceeds one and one-half times the applicable minimum wage for every hour worked in a workweek in which overtime hours are worked; and (iii) more than half the employee’s total earnings in a representative period must consist of commissions.

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Continue Reading DOL Adopts Two Significant Changes to “Modernize” Overtime

Although the U.S. is still in the thick of the COVID-19 crisis, this is exactly when employers who are deemed “non-essential” should be developing a careful, considered plan to bring their workforces back. Employers face a multitude of challenges in the planning process, including: (1) determining when and who comes back; (2) parting ways with employees with whom the business can no longer support or need; (3) sidestepping lawsuits that could otherwise arise after employee terminations; and (4) balancing employees’ legitimate concerns for themselves and their families’ with an increasingly imperative need to get your business up and running again.

This post briefly addresses issues employers should consider when bringing employees back. For a deeper dive of the issues covered in this post and more, check out a recording of Kelley Drye’s Part 1: Getting Back To Work: Preparations and Considerations for Employers webinar, and register for Part 2: Getting Back To Work: When the Rubber Hits the Road. Part 2 is scheduled for April 30, 2020 at 12:30 PM ET, click here to register.

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Continue Reading COVID-19 and Returning to Work: For Employers, It’s Not Too Soon to Plan a Comeback