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:
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.
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.
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.
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.
Subscribe
