NLRB GC Asks Board To Revisit Standard For Analyzing Employee Handbooks

Since August 2021, three of the five members of the National Labor Relations Board (“NLRB” or “Board”) have been appointed by Democratic presidents, including two members appointed by President Biden. Earlier this year, the Democratic majority announced in Stericyle, Inc., 371 NLRB No. 48 (Jan. 6, 2022), that it was requesting briefing on whether to overturn one of several employer-friendly decisions issued by the NLRB during the Trump administration: The Boeing Co., 365 NLRB No. 154 (Dec. 14, 2017). In Boeing, the Board adopted a new approach for assessing whether facially neutral employer policies (e.g., generally applicable employee conduct policies) unlawfully interfere with employees’ right to engage in “concerted activities for . . . mutual aid or protection” under Section 7 of the National Labor Relations Act (“NLRA”), even if they do not expressly mention such rights. 365 NLRB No. 154, slip op. at 23 (internal quotation marks and citation omitted).

In a brief filed earlier this week, NLRB General Counsel Jennifer Abruzzo officially joined the fray. Not surprisingly, the General Counsel formally asked the NLRB to overrule Boeing and return to a more employee-friendly standard of review. Below, we provide some background about Boeing and summarize the General Counsel’s position. Continue Reading

California Provides Employees with Another Bucket of COVID-19 Supplemental Paid Leave

California Provides Employees with Another Bucket of COVID-19 Supplemental Paid Leave

On February 9, 2022, California Governor Gavin Newsom approved Senate Bill 114 (“SB 114”), which entitles most California employees to a new bucket of COVID-19 supplemental paid sick leave.  The law will go into effect on February 19, 2022.

California’s prior law entitling workers to COVID-19 supplemental paid sick leave expired on September 30, 2021.  Calls to provide additional leave were made during the recent surge of the “Omicron” variant during the winter of 2021.  While that surge has seemingly receded in the last few weeks, the California legislature moved forward and passed SB 114 on February 7, 2022, and Governor Newsom signed it on February 9. Continue Reading

Oregon Health Authority Announces Sunset Date for Indoor Mask Requirements

On February 7, 2022, the Oregon Health Authority (“OHA”) announced that it would lift the general state-wide indoor mask requirement no later than March 31, 2022.  Per the OHA, the mask requirement for schools will also lifted by March 31, in coordination with the Oregon Department of Education (“ODE”).

The OHA is basing its decision on what it anticipates will be a sharp decrease in hospitalization rates for COVID-19 patients by the end of March. For now, however, the OHA will maintain the indoor mask requirement as COVID-19 hospitalizations reach their peak and Oregon’s health care system continues to feel the strain of the ongoing pandemic.

Although the OHA’s update provides helpful information about the fate of the mask requirement, several questions remain unanswered. These include:

  • Whether the OHA will wait until March 31 to withdraw the indoor mask mandate, or will do so earlier;
  • Whether mask requirements will continue in effect in locations that present a higher risk of COVID-19 transmissions, for example, in nursing homes or in health care or transportation-related facilities;
  • Whether local governments like cities, counties and school districts will continue to require masks even after the OHA no longer requires them.

The OHA specifically noted that once the indoor mask requirement is lifted, employers and businesses may maintain their own mask requirements.

We will continue to monitor the situation and keep you apprised about what the law requires. In the meantime, please feel free to reach out to any of our L&E attorneys with questions.

COVID-19 Vaccine and Mask Mandates – Comparison of Select States

On January 13, 2022, the United States Supreme Court issued a stay of the Occupational Safety and Health Administration’s (“OSHA”) COVID vaccine-or-test rule for large employers. Although the OSHA rule is effectively off the table, there are still a host of COVID rules that employers must comply with.

Stoel Rives has created an interactive map designed to provide a high-level summary of the approximate breakdown of COVID rules that employers must comply with in the states in which we are located. Click here to view the map and overviews for these states.

California Supreme Court Provides Clarity on Which Standard to Use for Retaliation Cases

On January 27, 2022, the California Supreme Court in Lawson v. PPG Architectural Finishes, Inc., No. S266001, 2022 WL 244731 (Cal. Jan. 27, 2022), addressed the issue of which standard courts must use when analyzing retaliation claims brought under California Labor Code section 1102.5.

In requesting that the California Supreme Court answer this question, the Ninth Circuit Court of Appeals recognized that California courts have taken a scattered approach in adjudicating 1102.5 retaliation claims.  Most courts use the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) (McDonnell-Douglas test), whereas others have taken more convoluted approaches.  Nevertheless, the Ninth Circuit determined that the outcome of the plaintiff in Lawson’s appeal depended on which was the correct approach, so it was necessary that the California Supreme Court resolve this issue before the appeal could proceed.

Ultimately, the California Supreme Court held that moving forward, California courts must use the standard set forth in Labor Code section 1102.6 to adjudicate a section 1102.5 whistleblower claim, once again making it more difficult for employers to defend against employment claims brought by former employees.

In this article, we summarize the facts and holding of the Lawson decision and discuss the practical effect this decision has on employers in California. Continue Reading

2021 Brought More Regulations for California Employers

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

Supreme Court Blocks OSHA’s Vaccine-or-Test Mandate but Allows CMS Vaccination Mandate for Most Health Care Workers

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.

Federal Court Allows OSHA Vaccine-Or-Test Rule To Move Forward

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.

Utah Bill Challenges Federal Vaccine Mandate for Large Employers

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.

The Latest on President Biden’s Vaccination Mandates

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

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