2021 was another important year for California employers. From decisions by the California Supreme Court regarding employees’ rights to premium pay for missed meal and rest breaks, to legislation expanding the scope of protected leave for California employees, to new laws dealing with the ongoing pandemic, 2021 had something to offer for everyone. This blog discusses some of the new laws and challenges to being an employer in the Golden State. Continue Reading
Today, the Supreme Court blocked the Biden Administration’s vaccine-or-test mandate for large employers, known as the Emergency Temporary Standard (“ETS”), which we wrote about here. The Court held that the federal agency that issued the ETS, the Occupational Safety and Health Administration (“OSHA”), has authority to regulate workplace safety issues, but not to regulate public health more broadly. A 6-3 majority of the Court ruled that the vaccine-or-test mandate ventured into the latter and thus exceeded OSHA’s authority. At the same time, the Court ruled that regulations applicable to recipients of Medicare and Medicaid funds – most health care providers – were within the agency’s authority, and could lawfully require vaccination of those providers’ employees.
The Court’s ruling does not put the final nail in the coffin for OSHA’s ETS, but it does increase the likelihood that it will one day be buried for good. For now, the Court’s ruling means that non-health care employers with 100 or more employees need not implement a vaccine-or-test policy that complies with the ETS. However, some states have implemented vaccine requirements for certain employees (for example, health care workers in Oregon and Washington), and private employers – of any size – may, of course, choose to adopt such a policy. But they are no longer required to do so by the federal government.
Recipients of Medicare and Medicaid funds must comply with the federal regulations requiring vaccination of employees, without a testing alternative (with some exceptions for employees with disabilities or religious beliefs that preclude vaccination). We recommend that any employer considering a mandatory vaccine policy consult with employment counsel.
At this moment, state governments – such as Oregon and Washington – have not finalized broad vaccine mandates for private employers other than the targeted requirements that had already been issued such as for health care workers. While the state agencies may still issue more far-reaching vaccination mandates, the Supreme Court’s decision today may take some wind out of those sails.
Finally, the Supreme Court’s decision raises questions about the Biden Administration’s requirement that federal contractors adopt a vaccine-or-test mandate similar to the ETS, which is still being litigated. Stay tuned for updates.
In a decision released late in the day on Friday, the United States Court of Appeals for the Sixth Circuit lifted a stay against the Occupational Safety and Health Administration’s (“OSHA”) rule requiring employers with 100+ employees either to require their employees to be vaccinated against COVID-19 or to submit to weekly COVID-19 testing and to wear facemasks in the workplace. The Sixth Circuit’s ruling paves the way for OSHA’s rule, which was at a standstill due to an injunction issued by a different court, to go into effect. Indeed, following the ruling, OSHA promptly announced that it expects employers to comply with the rule by January 10, 2022, but that it would not issue citations against non-complying employers until February 9, 2022. Employers that operate in states with their own occupational health and safety laws (including Alaska, California, Oregon, Utah, and Washington), will not be required to comply until the respective state agency formally adopts its version of the OSHA requirements.
The OSHA rule (29 C.F.R. 1910, subpart U), available here, generally requires employers with 100 or more employees to adopt one of two types of policies to combat the spread of COVID-19: either (1) a requirement that all employees be fully vaccinated, except to the extent that they are entitled to a reasonable accommodation on the basis of disability or religion; or (2) a requirement that employees who are not fully vaccinated against COVID-19 submit to weekly testing and wear masks in the workplace. Among other requirements, the rule also requires employers to provide employees with up to four hours of paid time off for time spent receiving COVID-19 vaccinations, in addition to whatever paid time off employees already have available. To assist with implementation, OSHA has published a summary of the rule, a lengthy FAQ document, and template mandatory-vaccination and vaccination-or-testing policies.
Although the Sixth Circuit’s order provides some clarity about the way forward, there is still significant uncertainty about the rule’s status. First, several organizations that challenged the rule in the lower court have already requested that the U.S. Supreme Court accept the case for review. If the Supreme Court accepts the case, it is possible (and perhaps even likely) that it will issue a stay against the rule going into effect while it considers the merits of the parties’ arguments. Second, in states that have their own state-sponsored occupational health laws, the state occupational health agency must formally adopt a rule that is at least as protective as OSHA’s rule. Although we expect that most states with their own approved plans will adopt some version of the vaccine-or-test mandate relatively soon, it is not clear when this will occur. For states without a state occupational health law (including, for example, Idaho), OSHA’s January 10/February 9 timeline will apply unless the U.S Supreme Court says otherwise or OSHA chooses to extend the deadlines.
Please feel free to contact any of the attorneys in our Labor and Employment group with questions.
In a special session this week, the Utah State Legislature passed a bill aimed at undermining the federal vaccine mandate for large employers. Like previously existing law, SB 2004 mandates that any Utah employer requiring vaccination for COVID-19 must allow employees an exemption for medical or reasons or because of religious beliefs. The Utah bill goes further, however, and requires an employee exemption for a “sincerely held personal belief.”
The formulation of these three exemptions tracks existing vaccination exemptions in public and higher education settings in Utah. The bill prohibits employers from taking adverse action against any employee opting out of vaccine requirements for one of the three sanctioned reasons and requires employers to pay for mandated COVID-19 testing. SB 2004 does not apply to federal contractors required to comply with federal vaccine mandates.
The status of vaccine mandates for Utah employers remains in flux. If Governor Cox signs SB 2004, Utah employers would be required to honor employee requests to opt-out of vaccine requirements for one of the enumerated reasons. If the federal vaccine mandate goes into effect, Utah employers should comply with the federal requirements, barring further legal action.
If you have questions about vaccine requirements in your workplace, contact your Stoel Rives Employment attorney.
As we blogged about here, on September 9, 2021, President Biden announced sweeping new vaccine requirements that will impact millions of employees across the country, including:
- A forthcoming rule that will require all business with 100 or more employees to require that employees be either fully vaccinated or tested for COVID-19 at least once a week.
- A vaccination mandate for federal government employees (with no testing alternative, although religious and medical exemptions will be permitted).
- A vaccine mandate for all federal contractors (with no testing alternative, although religious and medical exemptions will be permitted).
Here are the latest developments: Continue Reading
Way back on October 10, 2019, California Governor Newsom signed Assembly Bill 51 (“AB 51”), which essentially made it unlawful for California employers to require workers or job applicants to execute arbitration agreements requiring them to waive their rights to sue in court for violations of the California Fair Employment and Housing Act or the California Labor Code. Like many of the California legislature’s prior efforts to ban employment arbitration agreements, AB 51 was challenged prior to its effective date. This challenge was brought in the United States District Court for the Eastern District of California and resulted in the Court granting a motion enjoining its enforcement.
On September 15, 2021, the Ninth Circuit Court of Appeals reversed the District Court’s Order enjoining AB 51’s enforcement. While this ruling will almost certainly be appealed, at least for the time being the law is effective. This means that California employers are currently technically prohibited from requiring applicants or employees to execute arbitration agreements as a condition of employment. As such, California employers who intend to continue with those requirements should immediately consult with counsel to determine the benefits and risks of continuing down this (suddenly treacherous) path.
We will provide updates regarding AB 51 as further challenges to this law are all but guaranteed.
To address the on-going COVID-19 pandemic and the recent Delta variant surge, President Biden announced yesterday that he will implement sweeping new requirements to increase vaccination rates across the country. Among the changes:
- OSHA is developing a new emergency rule directing all businesses with 100 or more employees to require their employees be (1) vaccinated or (2) tested for COVID-19 at least once a week. Additionally, those businesses will be required to provide paid time off for employees to get vaccinated or recover from vaccination-related side effects. This requirement alone is estimated to impact over 80 million workers in the United States. It will not go into effect until OSHA issues its rule.
- All federal government employees must be vaccinated (with no testing alternative). The White House has said this requirement will take effect in “about 75 days.”
- All employees of contractors that do business with the federal government must be vaccinated (with no testing alternative). This requirement will only apply to new contracts that are entered into on or after October 15, 2021, and contracts that are extended or renewed after that date (with limited exceptions for contracts that are “solicited” before the effective date and entered into afterward). The “Safer Federal Workforce Task Force” has been ordered to issue further guidance on the specific requirements for contractors by September 24. The requirement applies to a host of contracts or “contract-like instruments,” including those for services and construction.
- Employees at health care facilities that accept Medicare or Medicaid reimbursement must be vaccinated (with no testing alternative). This requirement will not go into effect until a rule is issued, likely in October.
Last week, Governor Kate Brown announced that the State of Oregon would require that all health care workers be fully vaccinated against COVID-19 unless they could prove they were entitled to a religious or medical exception. The Oregon Health Authority (“OHA”) just released its administrative rule implementing the Governor’s announcement: effective October 18, 2021, health care workers and staff working in a health care setting must present documentation that they are fully vaccinated or that they are entitled to an exception. Medical and religious exemptions must be documented on specific forms prescribed by the OHA, available here. After that date, health care entities may not employ, contract with, or accept the volunteer services of an individual who cannot present such documentation. Below is a summary of additional details about the rule’s requirements.
Broad Applicability. The mandatory vaccine rule applies to all individuals, “paid or unpaid, working, learning, studying, assisting, observing or volunteering in a healthcare setting.” “Healthcare setting” is broadly defined to include “any place where health care, including physical or behavioral health care is delivered.” In addition to traditional medical facilities, the definition also includes providers of “alternative medicine such as acupuncture, homeopathy, [and] naturopathy” services.
Proof of Fully Vaccinated Status. As with prior OHA and Oregon Occupational Health and Safety rules, “fully vaccinated” means that at least 14 days have passed since the individual received the second dose of a two-dose vaccine (Pfizer/Moderna) or the first dose of a single-dose vaccine (Johnson & Johnson). Likewise, “proof of vaccination” means documentation issued by a government entity or health care provider that includes the worker’s name, date of birth, type of vaccine, date(s) the vaccine was given, and the name or location of the site where the vaccine was administered. A COVID-19 vaccination card or digital photo or printout from the OHA’s immunization registry satisfies the rule’s requirements. Continue Reading
Effective August 23, 2021, masks will once again be required in indoor public spaces in Washington, regardless of vaccination status, for everyone over the age of five. Masks will not be required for vaccinated employees in office spaces that are not public-facing, but are still required for unvaccinated employees in such offices. Masks will also not be required for individuals working alone with no in-person interaction.
As a general matter, masks will not be required, but are strongly encouraged, in crowded outdoor settings. However, unvaccinated employees are still required to wear masks when working outdoors with other people. Continue Reading
On August 19, 2021, just two weeks after announcing that all Oregon health care workers must either be fully vaccinated or test weekly for COVID-19, which we blogged about here, Governor Brown announced that vaccinations will be mandatory for health care workers starting October 18, 2021, assuming the vaccines have full FDA approval by then. There will not be a testing alternative. Employers may, however, need to make accommodations for employees with disabilities or sincerely-held religious beliefs that prevent them from receiving the vaccine.
Prior to October 18 and full FDA approval, the Oregon Health Authority rules requiring health care workers to either show proof of vaccination or test weekly remain in effect.
If you have any questions about workplace vaccination policies or exemptions, please contact us.