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Women and the Pandemic Workplace: Corporate Leadership’s Important New Challenges

While a recent McKinsey and LeanIn.org women and the workplace study pointed to positive gains for women in corporate leadership roles in 2020, women continue to face substantial burdens in their careers. According to this Forbes article, McDermott Partner Michael Peregrine says such burdens pose a “significant threat to the economic and cultural health of an organization.” These burdens include hierarchical validation, burnout, and significant bias and discrimination for women of color.

“Ideally, boards can use the 2020 progress as evidence that their leadership on gender equity can—and does—make a difference,” Peregrine notes.

Access the article.




Businesses Left in Limbo on COVID-19 Mandate

Following a US Court of Appeals for the Fifth Circuit decision to temporarily block the Occupational Safety and Health Administration’s (OSHA) new vaccine requirement rule, many employers have found themselves in a state of confusion. According to this article published in The Hill, businesses could face steep penalties if they willfully violate the rule, such as fines of more than $130,000. But even though the rule is temporarily blocked, McDermott Partner Michelle Strowhiro said businesses should continue preparing for important OSHA deadlines.

“I think it’s prudent for employers to proceed with planning assuming that the OSHA rule, at least in some form or fashion, will be implemented pending final resolution of the various court cases,” Strowhiro said.

Access the article.




Vaccine Exemption Requests Put Legal Departments in Tricky Spot

As more employers mandate vaccines for their workforces, in-house legal departments are encountering a host of challenges, including understanding religious accommodations and minimizing litigation exposure. According to this article published in Law.com, employers should have the ability to navigate Americans with Disabilities Act (ADA) and Title VII-related accommodation requests. However, McDermott Partner Carole Spink said many employers have never encountered the current breadth of religious exemption requests from their workforces.

Access the article.




Federal Appeals Court Temporarily Blocks New OSHA Rule

On November 6, 2021, the US Court of Appeals for the Fifth Circuit temporarily blocked the Emergency Temporary Standard (ETS) issued on November 4, 2021, by the Occupational Safety and Health Administration (OSHA) requiring employers with 100 or more employees to implement COVID-19 vaccination policies. The ETS is stayed until further notice, halting its implementation temporarily. While the future of the ETS remains uncertain, employers may want to continue preparing for the ETS as if it is going to take effect while litigation continues.

Read more here.




OSHA and CMS Vaccination Rules Released: Here Are the Details

On November 4, 2021, the US Occupational Safety and Health Administration (OSHA) unveiled its Emergency Temporary Standard (ETS) to protect employees of large employers in all industries from COVID-19. The Centers for Medicare and Medicaid Services (CMS) simultaneously released its Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule, applicable to most Medicare- and Medicaid-certified providers and suppliers, which must be met to continue participation in Medicare and Medicaid programs. Finally, the White House announced that its previously published federal contractor vaccination mandate would be updated to move the compliance deadline from December 8, 2021, to January 4, 2022.

Read more here.




Payers Seek Clarity on Biden’s Vaccination Mandates

A recent Biden administration Executive Order requires workplace COVID-19 vaccinations for many companies, healthcare workers and federal contractors to occur by December 8. However, the federal government has yet to rule whether payers are federal contractors.

In this Health Payer Specialist article, McDermott Partner Michelle Strowhiro said if the government determines that payers that administer certain plans are federal contractors, renewal contracts signed between October 15 to November 14 will require clauses guaranteeing compliance with the vaccination mandates.

Access the article.




When Is COVID-19 a Disability? Courts Tackle Issue in Bias Cases

A Pennsylvania federal judge recently allowed an employee to move forward with a discrimination lawsuit after her employer terminated her following a positive COVID-19 test result. According to this Bloomberg Law article, the judge noted that COVID-19 could be considered a disability under the Americans with Disabilities Act (ADA); however, it’s unclear if the ADA also protects infected workers before they display long-haul COVID-19 symptoms. McDermott Partner Brian Mead said the employee’s presentation of long-haul COVID-19 symptoms (including loss of smell and taste) was also key in the judge’s ruling.

“The difference between having a cough or a substantial lung impairment is the difference between being covered by the ADA or not covered,” Mead said.

Access the article.




Agencies Clarify How Employers Can Charge COVID-19 Vaccine Premium Incentives

On October 4, 2021, the US Departments of Labor, Treasury, and Health and Human Services issued guidance regarding the application of the Health Insurance Portability and Accountability Act (HIPAA) 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.

Employers have grown more interested in exploring incentives designed to increase COVID-19 vaccination rates among employees. Some employers have announced plans to charge unvaccinated employees higher contributions for health coverage than vaccinated employees, while some have been considering other options, such as excluding coverage for COVID-related illnesses, charging higher cost-sharing for COVID-19-related illnesses and offering more generous plan options to employees who are vaccinated.

Read more here.




The Questions Your Board’s Human Capital Committee Needs to Ask

What questions should a governing board’s human capital committee ask itself? According to this August 2021 e-book edited by McDermott Partner Michael Peregrine, committee members should regularly ask themselves questions about workforce strategy and engagement, outstanding litigation, talent pipeline and management strategy and human capital technology.

Access the e-book (Page 8).




OSHA Updates COVID-19 Safety Guidance for All Industries

On August 13, 2021, the US Occupational Safety and Health Administration (OSHA) updated its COVID-19 guidance documents for employers in all industries. The new recommendations echo those published by the US Centers for Disease Control and Prevention (CDC) on July 27, 2021, and build upon OSHA’s healthcare industry requirements.

In some of its most powerful language yet (and stopping just short of an absolute requirement), OSHA “strongly encourages” employers to provide paid time off to workers for the time it takes for them to get vaccinated and recover from any side effects.

Read more here.




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