In a global interview panel sponsored by Lexology, McDermott Partner Carole A. Spink discusses the most critical US legal issues for remote workers. Spink explains how US employers can best prepare for the continuation of remote work and its corresponding legal complexities.
Even though the US Court of Appeals for the Fifth Circuit temporarily blocked the Occupational Safety and Health Administration’s (OSHA) COVID-19 vaccination rule for employers (though not for the healthcare sector), businesses should continue preparing for important OSHA deadlines.
According to this Reuters article, workplace whistleblowers and fears of disappearing federal funds will likely help with vaccination mandates within businesses, hospitals and nursing homes. However, OSHA is unlikely to demand proof from every healthcare provider of vaccination and testing protocols. The Centers for Medicare & Medicaid Services (CMS) also typically does not survey accredited healthcare providers unless there is a complaint or a need for recertification, McDermott Partner Sandra DiVarco noted.
“On a stakeholder call, CMS reiterated their desire to work with providers to come into compliance and not to sort of send SWAT teams to go out and look for problems,” DiVarco said.
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.
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.
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.
What are the impacts of a multigenerational workforce, and how do you best bridge generational differences in the workplace?
In this Chicago Lawyer Magazine article, McDermott Partner Tina Martini suggests that multiple generations of employees can have varying ideas about how to approach issues, as well as having distinct points of view.
“There can be adverse consequences in not having different generations represented, including the potential for it to negatively impact your ability to recruit and retain top talent,” Martini notes.
How should corporate boards respond to the Delta variant?
“The new, Delta-prompted potential for intra-organizational clash is the latest and potentially one of the most significant of these concerns,” Peregrine writes.
As employers navigate evolving COVID-19 state and federal rules, workplaces will have to stay vigilant about changes throughout the second half of 2021. These include changes to mask mandates, the Occupational Safety and Health Administration’s Emergency Temporary Standard and the New York Health and Essential Rights (HERO) Act.
Recent US Equal Employment Opportunity Commission guidance, for example, confirmed what employment lawyers had already been counseling businesses to do, according to McDermott partner Carole A. Spink in a recent Law360 article.
“The guidance was important because it did clarify that employers can provide incentives for voluntary programs. [There] was a big open question about, ‘Am I going to get into trouble because I’m trying to incentivize people to be vaccinated?'”