EverythingPeople This Week!

Since the publication of the OSHA Emergency Temporary Standards (ETS), it has been on a roller coaster ride through the courts. In the history of OSHA, there have been 10 ETS issued and six were challenged in court; only one survived the challenge.

  The question now is whether a second one will survive a court challenge.

Earlier in the year ASE shared information on the pending law that would redact dates of birth from court records. The law, that was to take effect July 1, 2021, was postponed until January 1, 2022. This change would have made it difficult, if not impossible, to conduct criminal record checks in the State of Michigan.

The General Counsel to the National Labor Relations Board (NLRB), Jennifer Abruzzo, continues her strict interpretation on protecting employees from employers who may be violating their rights.  For example, although the NLRB does not have the authority to impose fines, penalties, or punitive damages on an employer, it does have significant remedial authority to provide "whole relief" to the charging party.  Abruzzo wants to extend the definition of “whole relief” to...

As briefly covered in last week’s EPTW, the Fifth Circuit Court of Appeals issued a temporary stay on November 6, 2021, in response to OHSA’s Emergency Temporary Standards (ETS) outlining the vaccine mandate for employers with 100+ employees. This was a temporary stay pending review by the Court of legal briefs submitted by OSHA and the states challenging the federal vaccine mandate. On Friday, November 12, 2021, the Fifth Circuit Court of Appeals issued an order to continue its...

Last Thursday OSHA released notice it was publishing its Emergency Temporary Standards (ETS) for employer mandated vaccinations. The ETS covers organizations over 100 in employment size. The effective date of the ETS will be December 5^th, and the date for vaccinations will start 60 days from last Friday or January 4, 2022. Following the ETS vaccination deadline the White House modified its deadline for federal contractors to the same date – 1/4/2022.

As larger employers wait for the Occupational Safety and Health Agency’s (OSHA) Emergency Temporary Standards (ETS) that will tell them how to compliantly manage mandated vaccinations, many employers are looking to make other constructive changes to their health and safety policies. As a lever to promote voluntary vaccination, some employers have implemented health care “surcharges” on unvaccinated workers.

With air travel opening and requirements for vaccines required, the fake vaccine card market is taking off.  There are a number of cases reported in the news.  For example, a spelling-challenged Illinois woman who doesn't know her Moderna from 'Maderna' was arrested after using a fake COVID-19 vaccination card to go on vacation in Hawaii.  In another case, a New Jersey woman calling herself the “AntiVaxMomma” on Instagram sold several hundred fake COVID-19...

Despite the controversy and calling out of employers that are requiring vaccination and other on-site safety protocols, the courts around the country are holding that State employers are within their rights to require employees to comply or lose their jobs.

There is a growing argument that there should be three types of people considered under COVID-19 protocols:  unvaccinated, vaccinated, and previously infected.  This argument claims that because they were infected, they have the antibodies similar to vaccinations, and in certain studies, better protected than those who are vaccinated.

As we wait for the OSHA guidance detailing how employers (over 100 in employment) can implement mandated vaccination for employees, employers need to keep in mind how they require vaccination and testing may impact proper pay for non-exempt employees.

U.S. Department of Health & Human Service (HHS) issued additional guidance concerning how HIPAA rules intertwine with the COVID environment.  The guidance provides greater clarity to employers as to when HIPAA does and does not apply in various situations. The following is a rundown of the guidance.

Monday started the U.S Supreme Court's new year. Though it has some incredibly impactful cases in other areas of the law, it marks the start of this year’s docket looking at four workplace law questions.

Last month, the Supreme Court declined to take up the issue of whether the nation's schools must allow students to use the bathroom that matches their gender identities.  In that case, a 4th Circuit Court of Appeals decision, the court ruled in favor of Gavin Grimm, a transgender man who sued his Virginia high school for barring him from using the boys’ restroom.  Grimm stated that “[b]eing forced to use the nurse’s room, a private bathroom, and the girl’s...

The new Guidance from the Safer Federal Workplace Task Force (“Task Force”) issued on September 24, 2021, in response to the President’s Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors, outlines the following requirements for federal contractors and subcontractors:

In addition to providing an employee valuable information about the company, its rules, benefits, and general practices, employee handbooks include a myriad of important legal compliance statements.  These statements are intended as not only employee notices that may or may not be required by law, but to set up employer affirmative defenses in the event of a wrongful employment action. These policies will generally not keep you out of court but do set up an argument that the company...