On March 22, 2022, the US Occupational Safety and Health Administration (OSHA) announced a limited reopening of the rulemaking record for the COVID-19 emergency temporary standard for the healthcare industry, originally published on June 21, 2021 (the Healthcare ETS). OSHA will hold an informal public hearing to gather additional information from healthcare industry stakeholders. With the announcement, OSHA reaffirmed its plans to publish a permanent COVID-19 safety standard (i.e., regulation) for the healthcare industry later this year.
Illinois’ Biometric Information Privacy Act (BIPA) has spawned a tsunami of class actions against employers who utilize biometric timekeeping or security systems. Now, the Illinois Supreme Court in McDonald v. Symphony Bronzeville Park, LLC has eliminated a defense invoked by employers facing claims under BIPA: the exclusivity of workers’ compensation.
A project labor agreement (PLA) is a collective bargaining agreement between a contractor and the building trade union on a specific construction project. PLAs are negotiated before any workers are hired, and they establish the terms of employment on a project. Executive Order (EO) 14063, issued by the Biden administration on February 2, 2022, requires PLAs on “large-scale construction projects,” defined as Federal construction projects within the United States for which the total estimated cost of the construction contract to the Federal Government is at least $35 million.
As of January 1, 2022, a new Illinois law governing restrictive covenants (Public Act 102-0358) is in effect. This law outlines the requirements for valid noncompetition and nonsolicitation agreements, and enforcement of those covenants. It applies to all agreements entered into on or after January 1.
The process of recruiting and onboarding new employees will require re-examination as remote work becomes a permeant fixture of the American workplace. In this Law360 article, McDermott Partner Ellen Bronchetti offers perspective about how companies will need to modify these policies and procedures.
“My concern when you don’t have the level of engagement that you used to have when you brought an employee in the door, is whether or not a company’s policies and practices are adequate to instruct employees [about] the rules [and] expectations,” Bronchetti said.
On January 27, 2022, the California Supreme Court provided clarification in Lawson v. PPG Architectural Finishes, Inc. to lower California courts reviewing whistleblower retaliation claims. In what it calls an “unsurprising” decision, the California Supreme Court concluded that the framework prescribed by California Labor Code section 1102.6, rather than the McDonnell Douglas test, must be used in whistleblower claim evaluations. The impact of this decision is that employees will have a lower burden to meet to demonstrate that their alleged whistleblower activities resulted in an adverse employment action, while employers will have to meet a higher burden requiring them to demonstrate by clear and convincing evidence that they did not retaliate based on the employee’s activities.
As the world enters the third year of the COVID-19 pandemic, employers have gained a greater understanding about the virus’ relationship with US anti-discrimination laws. With the inevitable rise of future variants and long-haul COVID-19 cases, however, businesses are still navigating murky waters. In thisLaw360 article, McDermott Partner Lindsay Ditlow offers perspective about worker accommodation requests and what they mean for employers.
US employers have grown increasingly interested in identifying incentives that increase COVID-19 vaccination among employees. The US Departments of Labor, Treasury and Human and Human Services recently issued guidance regarding the application of the Health Insurance Portability and Accountability Act (HIPPA) wellness rules to vaccine-related premium surcharges and discounts, clarifying that employers may charge vaccine premium incentives if they adhere to the requirements of activity-only health-contingent programs. In this Employee Benefit Plan Review article, McDermott Partner Judith Wethall and McDermott Associate Sarah G. Raaii outline what this HIPPA guidance means for employers.
The US Supreme Court’s January ruling allowing the Centers for Medicare & Medicaid Services to enforce its COVID-19 mandate is likely to continue to face challenges. Nevertheless, in this article published by the Health Care Compliance Association, McDermott Partner Sandra DiVarco said that the Supreme Court’s decision wasn’t a surprise.
“Many of [the CMS] providers may have slow-walked their compliance and now in theory need to be fully compliant,” DiVarco noted.
On January 25, 2022, California Governor Gavin Newsom announced that his office and state lawmakers had reached an agreement to reimplement a version of California’s COVID-19 Supplemental Paid Sick Leave through September 30, 2022. It is expected that the state legislature will move quickly to finalize and vote on legislation to effectuate this statewide paid leave obligation.
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