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Supreme Court OKs CMS Vaccine Mandate but Blocks OSHA Rule

On January 13, 2022, the Supreme Court of the United States released two emergency opinions that change the landscape of the three federal vaccine rules. In summary:

  • A 5-4 Court majority let the Centers for Medicare & Medicaid Services (CMS) enforce its vaccine mandate nationwide, impacting specified healthcare facilities.
  • A 6-3 majority blocked the US Occupational Safety and Health Administration (OSHA) from enforcing its vax-or-test Emergency Temporary Standard (ETS) applicable to large employers.
  • The third federal vaccine rule—the federal contractor vaccine mandate—remains subject to multiple legal challenges and, at this time, the government is blocked from enforcing the mandate nationwide. The Court has not yet weighed in on this mandate.

Read more here.




What Are the Pros and Cons of Returning to the Office?

While remote work provides many conveniences, the office offers an ‘interpersonal glue’ that is difficult to replicate when working from home. As McDermott Partner Tina Martini notes in this Chicago Lawyer article, there are countless opportunities to develop professional and personal relationships in the office.

“I don’t think I would be where I am today as an attorney and professional if I didn’t have these chances,” Martini said.

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Four Trump-Era Bias Policies Stymied by Biden in 2021

Throughout US President Joe Biden’s first year in office, the Biden administration reversed numerous Trump-era policies, including those concerning the US Equal Employment Opportunity Commission, federal contractors, wage data and LGBTQ bias. In this Law360 article, McDermott Partner Rachel Cowen offers insight into how the friction between religious and LGBTQ rights will continue to play out throughout employment law.

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Labor Under Biden: What Employers Need to Know

Before the 2020 election, then-US Presidential candidate Joe Biden vowed to be the “strongest labor president you have ever had.” Now having been in office for almost a year, how has President Biden changed the country’s labor environment, and what can employers expect out of his administration? In these slides, McDermott Partners Ron Holland and Kristin E. Michaels and McDermott Associate Philip Shecter provide insight into US labor activity and how the latest labor developments affect both union and nonunion employers.

Access the slides.




Tenth Circuit Compels Arbitration in Overtime, Joint Employer Case

A recent US Court of Appeals for the Tenth Circuit ruling determined that a pipeline inspector’s Fair Labor Standards Act (FLSA) lawsuit against an energy company could not be adjudicated without involving the subcontractor that paid his wages. According to this Law360 article, the Tenth Circuit ruled that the inspector was trying to play “fast and loose with the courts” and using his subcontractor contract “to his advantage when it suits him and disavow it when it does not.” McDermott Partner Rachel Cowen represented the subcontractor.

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Federal Vaccine Mandates Are Back in Play (For Now)

The courts continue to move the vaccine mandate goalposts on employers as dozens of legal challenges work their way through the courts. The latest developments are major game changers for employers. As of today, the US Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard (ETS) vaccine-or-test rule is enforceable nationwide, and the US Centers for Medicare & Medicaid Services (CMS) Interim Final Rule (IFR) mandating vaccination, subject to exemptions, is enforceable in 25 states.

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Fifth Circuit Brings Enforcement Back into the Mix: The Latest Court Moves with the CMS Vaccination Mandate

A flurry of litigation in federal district and appellate courts has led to an even split between states in which the COVID-19 vaccine mandate issued by the US Centers for Medicare and Medicaid Services (CMS) may be implemented and states in which such implementation has been prevented. Additional appeals are expected shortly; however, the practical effect of these decisions on enforcement of the CMS mandate remains uncertain.

Read more here.




New York City Unveils COVID-19 Vaccine Mandate Details

On December 13, 2021, the Commissioner of the New York City Department of Health and Mental Hygiene (DOHMH), Dr. Dave A. Chokshi, published an order (the Order) requiring private employers to impose COVID-19 vaccine mandates upon all in-person employees within New York City, with limited exceptions, as of December 27, 2021. DOHMH provided a series of FAQs and additional guidance on December 15, 2021. The Order follows Mayor Bill de Blasio’s December 6, 2021, announcement of this impending mandate.

Read more here.




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