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.
On January 25, 2022, the US Occupational Safety and Health Administration (OSHA) announced that it would withdraw its controversial “vax-or-test” Emergency Temporary Standard (ETS), which required large employers to impose vaccination or testing requirements upon their employees. The withdrawal will be effective as soon as the announcement is published in the Federal Register, which is scheduled to occur on January 26, 2022.
Throughout the latest COVID-19 wave, some healthcare employers have relaxed safety measures to bring COVID-positive employees back to work. According to this Corporate Counsel article, these decisions may signal a new direction in how businesses deal with safety measures as they navigate a competitive labor market and demand. McDermott’s Abigail M. Kagan noted many healthcare facilities are doing their best to balance employee safety with workplace strain.
“If a patient hears that their nurse has tested positive that morning, the patient may be uncomfortable,” Kagan noted. “ … On the other hand, if it’s the difference between having no nurse, or having a nurse that medical authorities in the (United States) seem to believe is not going to be contagious anymore, that’s something that employers have to think about.”
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:
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.
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.
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.
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.
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.
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.
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