Labor & Employment Issues

The SpaceX and Jarkesy Ripple Effect: What Recent Court Decisions Could Mean for OSHA’s Whistleblower Program

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By Mark Ishu

A New Constitutional Reckoning for Agency Adjudication

The Supreme Court’s decision in SEC v. Jarkesy (2024) and the Fifth Circuit’s ruling in SpaceX v. NLRB (2025) together mark the most significant challenge in decades to the modern administrative state. Both decisions question how—and by whom—federal agencies may prosecute and adjudicate enforcement actions.

Although neither case arose under OSHA or the Department of Labor (DOL), their reasoning reaches squarely into the heart of OSHA’s whistleblower program, which relies on Administrative Law Judges (ALJs) in DOL’s Office of Administrative Law Judges (OALJ) and Administrative Review Board (ARB) to decide retaliation claims.

For employers, these rulings signal not an enforcement surge, but a structural shift that could fundamentally alter how whistleblower cases are handled and appealed. Continue reading →

Register for Part Two of CMC’s Labor/Employee Relations & Collective Bargaining Masterclass!

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Join us for Part Two of our Stay Ready: Labor/Employee Relations and Collective Bargaining Masterclass Series.

You can save 25% off if you register by July 7th. Enter “stayready25” at checkout.

(Part Two)
Stay Ready: Positive Employee Relations
and Union Organizing

This program assists non-union or minimally unionized employers with examining workplace vulnerabilities and risks for union organizing as well as best practices for lawfully responding to organizing efforts.

Participants will learn about: Continue reading →

Introducing CMC’s Labor/Employee Relations & Collective Bargaining Masterclass!

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Introducing Conn Maciel Carey LLP’s
Labor/Employee Relations & Collective Bargaining Masterclass

Join Conn Maciel Carey for an engaging and interactive learning experience on your rights and obligations under private sector labor law. With a focus on the National Labor Relations Act (NLRA), this series will leave you better informed about your rights and responsibilities, empowered to protect your business interests, and equipped with tools to ensure positive employee relations and guard against unnecessary intrusions and disruptions to your operations. One common misunderstanding about the NLRA is that it only applies to employers with union-represented employees. The truth is the NLRA applies to most private sector employers, regardless of size, whether or not their employees are represented by a union.

CMC’s Labor/Employee Relations and Collective-Bargaining Masterclass Series is designed for in-house counsel, senior human resources leaders, and other key organizational leaders responsible for leading employee and/or labor relations or making decisions impacting employees’ terms and conditions of employment directly or indirectly. Join us for this informative, interactive, and empowering learning experience where we will fully explore and demystify complex legal standards under the NLRA, share professional insights, and share tips for everyday practical applications as well as high stakes, complex business transactions.

Click here for more information and to register!

Learning Objectives

At the end of this masterclass series, business participants should: Continue reading →

OSHA Expands Its Investigative Authority Under the Whistleblower Protection Program through U and T Visa Certifications

Eric J. Conn Leave a comment

By Kara Maciel, Eric J. Conn, and Darius Rohani-Shukla

OSHA has unveiled another tool that will enhance its ability to investigate potential workplace safety violations affecting vulnerable workers who are victims of criminal activity, including sex and labor trafficking. Effective March 30, 2023, OSHA can now issue an important certification used to support two nonimmigrant visas, the U and T visas, that grant individuals immigration status when working with officials during criminal investigations and proceedings. Immigration,Document.,3d,IllustrationBoth the U visa and T visa were created in 2000 as part of the Victims of Trafficking and Violence Protection Act and are intended to provide undocumented workers or workers whose immigration status depends on their employer with the opportunity to report qualifying criminal activity (QCA) without jeopardizing their immigration status and/or risking retaliation by their employer. Now, OSHA can provide support to the visa applications of workers who bring forward credible allegations of a violation of a law that OSHA enforces, in situations where OSHA has detected specific QCA.

OSHA does not have the authority to issue U and T visas themselves. Rather, these visas are issued by Continue reading →

Strategies for Responding to Whistleblower / Retaliation Complaints [Webinar Recording]

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On Tuesday, March 21, 2023 at 1 p.m. EST, Jordan B. Schwartz, Lindsay A. DiSalvo, and Victoria L. Voight presented a webinar regarding Strategies for Responding to Whistleblower/Retaliation Complaints.

Over the past several years, employers have seen a significant uptick in retaliation claims filed by employees and investigated by federal agencies. For example, in 2010, only approx. 30% of all charges filed with the EEOC included a retaliation claim, but that number shot up to almost 60% in FY 2021. Similarly, the vast majority of whistleblower complaints filed with OSHA in FY 2022 – about 76% – were filed under Sec. 11(c) of the OSH Act (retaliation based on protected safety acts).

When a general retaliation or whistleblower complaint is received, employers have a chance to explain why the complaint should be dismissed. The response is an opportunity for the employer to provide information so the agency investigating the complaint can close its file; whether that means OSHA decides an onsite inspection is unnecessary or the EEOC dismisses the discrimination charge. The responses can, however, create a written record of admissions that OSHA or the EEOC could use against the employer. Employers should thus be strategic about the information shared at that early stage and should ensure there is a procedure in place for managing and developing these responses.

Participants in this webinar learned: Continue reading →

Join CMC’s Coalition to Combat the FTC’s Ban of Noncompete Agreements

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Earlier this month, the Federal Trade Commission (FTC) issued a Notice of Proposed Rulemaking for its proposed rule that would essentially prohibit employers from entering into noncompete agreements with any employee, as well as with independent contractors, interns, volunteers, and other types of workers. The proposed rule would require employers to withdraw any existing noncompete agreements and inform employees that noncompete agreements no longer apply. The proposed rule would also make it unlawful for an employer to enter into a noncompete agreement with an employee, to attempt to enter into such an agreement with an employee, or to suggest that an employee is bound by a noncompete agreement when the employee is not.

While the FTC may justify this proposed rule as necessary to allow workers to move freely without restrictions, we believe that this rule, if passed, would severely compromise a company’s ability protect its trade secrets and other confidential information, and could negate a company’s significant investment in valuable investments in its employees, including employee training.  Indeed, there are countless reasons why a narrowly tailored noncompete agreement is a necessary tool that has been, and should continue to be, in an employer’s arsenal to protect its significant investment in its employees and the information to which they are privy.

The rule is currently open for comment.  To that end, Conn Maciel Carey LLP is organizing a new fee-based coalition of employers and trade groups to advocate for the most reasonable FTC rule possible, with the goal of helping to shape any rule that the FTC ultimately promulgates in such a way that the rule is palatable to employers. Continue reading →

[Webinar] Preventing and Responding to Workplace Violence

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On Tuesday, October 11, 2022 at 1 p.m. EST, Kara M. Maciel, Lindsay A. DiSalvo, and special guest Terri D. Patterson, Ph.D., a Principal at Control Risks and threat management expert with over two decades of experience, will present a webinar on Preventing and Responding to Workplace Violence.

In 2020, physical assault was identified as the 4th leading cause of workplace deaths. Nearly 2 million American workers experience violent acts at work annually. As the COVID-19 pandemic appears to be entering the endemic phase and workers begin to transition back into the workplace, experts predict even more of an increase in workplace violence. Thus, employers will want to be prepared to prevent these types of incidents and protect their employees to the extent possible, as well as ensure they are doing all that’s required from a regulatory standpoint.

Workplace violence has been a focus for both the Occupational Safety and Health Administration (“OSHA”) and the Equal Employment Opportunity Commission (“EEOC”) well before the pandemic and remains so now. While OSHA has no specific standard for workplace violence, the OSH Act’s General Duty Clause requires employers to Continue reading →

What Employers Need to Know About the Monkeypox Virus [Webinar Recording]

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On September 6, 2022, Kara M. Maciel, Eric J. Conn and Ashley D. Mitchell presented a webinar regarding What Employers Need to Know About the Monkeypox Virus.

On July 23rd, the World Health Organization declared Monkeypox a Public Health Emergency of International Concern. By late July, the U.S. surpassed 10,000 total cases, and the Biden Administration declared it a public health emergency. While the Monkeypox Virus is less transmissible than COVID-19 and rarely fatal in its current form, there are still workplace safety and health considerations employers will have to address.

Participants in this webinar learned: Continue reading →

[Webinar] What Employers Need to Know About the Monkeypox Virus

Theresa Jordan Leave a comment

On Tuesday, September 6, 2022 at 1 p.m. EST, join Kara M. Maciel, Eric J. Conn and Ashley D. Mitchell for a webinar regarding What Employers Need to Know About the Monkeypox Virus.

On July 23rd, the World Health Organization declared Monkeypox a Public Health Emergency of International Concern. By late July, the U.S. surpassed 10,000 total cases, and the Biden Administration declared it a public health emergency. While the Monkeypox Virus is less transmissible than COVID-19 and rarely fatal in its current form, there are still workplace safety and health considerations employers will have to address.

Participants in this webinar will learn: Continue reading →

Religious and Disability Accommodations in Response to COVID-19 Mandates [Webinar Recording]

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On Thursday, April 7, 2022, Andrew J. Sommer and Lindsay A. DiSalvo presented a webinar regarding Religious and Disability Accommodations in Response to COVID-19 Mandates.

Employee requests for medical and/or religious accommodations in the workplace are not new. However, never before have these accommodation requests been such a hot-button topic, nor have these accommodation requests been used so frequently (and in particular, religious accommodation requests). The imposition of COVID-19 vaccine mandates has changed that, particularly with regard to religious accommodation requests, which has become the ultimate “gray area,” as both employers and employees alike have learned that sincerely held religious belief can include an employee’s religious-based objection to vaccinations. As a result, the Equal Employment Opportunity Commission (“EEOC”) has issued guidance regarding the obligations of employers under Title VII when an employee presents with a religious objection to a mandatory COVID-19 vaccination policy, which actually builds upon prior EEOC guidance regarding COVID-19 vaccinations in the employment context. Thus, there are multiple issues that employers need to keep in mind and juggle when addressing these vaccination accommodation requests.

Participants in this webinar learned how to best deal with such requests by their employees, including: Continue reading →

The Supreme Court Heard Oral Argument in the Legal Challenges to OSHA’s Vaccinate-or-Test Emergency Rule

Eric J. Conn 7 Comments

By Conn Maciel Carey LLP’s COVID-19 Task Force

This morning, the US Supreme Court heard oral argument in National Federation of Independent Business v. Department of Labor and Ohio v. Dept. of Labor, the consolidated cases challenging the legality of OSHA’s COVID-19 Vaccination, Testing, and Face Coverings emergency temporary standard.  Specifically, the question before the Court today was whether the OSHA ETS should be stayed pending the merits adjudication pending before the US Court of Appeals for the Sixth Circuit.

Although scheduled for just one hour, the argument in this rare OSHA case to appear before the Supreme Court lasted a little more than two full hours.

If you were not able to listen live this morning, here is a link to an audio recording on C-SPAN.  And here is a link to the transcript of the argument.

The Department of Labor was represented at argument by the Solicitor General Elizabeth Prelogar.  The lawyers representing the petitioners that are seeking an emergency stay of OSHA’s vaccinate-or-test ETS were:

  • Scott Keller from Lehotsky Keller LLP, representing National Federation of Independent Business and other industry associations; and
  • Benjamin Flowers, the Solicitor General of Ohio, representing Ohio and other petitioner states.

The Ohio Solicitor General, arguing against OSHA’s vaccinate-or-test ETS, appeared remotely for the argument because he tested positive for COVID-19, somewhat ironically, pursuant to the Supreme Court’s own testing mandate for lawyers who would appear in-person to argue before the Court.

Our very high level takeaway from the argument today, and based on the nature of the questions the various Justices asked and what we know about their jurisprudence, it seemed that the conservative majority of the Court Continue reading →

Chicago’s New Year Vaccine Requirements

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By Conn Maciel Carey LLP’s COVID-19 Task Force

As COVID-19 cases continue to rise throughout the state of Illinois, operators of indoor dining establishments, gyms, and entertainment venues where food and drinks are being served in the City of Chicago face a series of new requirements that necessitate quick action. Beginning January 3, 2022, Public Health Order 2021-2 will require all individuals over the age of 5, show proof of full vaccination to dine indoors, workout, and patronize entertainment venues. For purposes of the Public Health Order, fully vaccinated is the more restrictive of either the Centers for Disease Control and Prevention (CDC) guidance or Chicago Department of Public Health (CDPH) posted guidelines. For the time being, both the CDC and CDPH guidelines are aligned, defining fully vaccinated as two weeks after receiving the second dose in a two dose vaccination series and one week after receiving a single dose in a single dose vaccination series.  It remains to be seen if, or when, the recommended-but-not-required boosters will be added to that definition.

Employers, of course, must quickly figure out how to implement measures to comply with this Order—both with respect to customers/guests as well as with employees given that the Order does not have a minimum employee threshold like the Fed OSHA ETS.  This means that even small, independently owned restaurants and bars will be expected to comply even if they were not covered by the ETS which kicked in only at 100 employees.

Who is covered?

Public Health Order 2021-2 applies to the following venues: Continue reading →

Update on OSHA’s COVID Emergency Rule for Healthcare – And How It Affects the Vaccinate-or-Test ETS

Eric J. Conn 3 Comments

By Conn Maciel Carey’s COVID-19 Task Force

Last week, on December 27th, OSHA announced the withdrawal of most of its COVID-19 ETS for Healthcare, which was the first of the two COVID-19 emergency temporary standards OSHA issued in the first year of the Biden Administration.

This Healthcare ETS was issued back in June 2021 in response to President Biden’s Day 1 OSHA Executive Order.  Recall that this was the ETS that had been crafted by OSHA to apply to all employers in all industries, but as it was being finalized in late Spring, when it looked like we might just be approaching the end of the pandemic, the Administration decided to narrow the scope to just the healthcare industry.  That ETS was what we call a “programmatic” standard; requiring the development of a comprehensive COVID-19 prevention program, complete with an array of required engineering and administrative controls.  When the Healthcare ETS was issued, OSHA noted on its webpage for the ETS that it expected the ETS to be in effect for six months from the date of publication — until December 21, 2021.

December 21st came and went without any word from OSHA.  But on Monday of last week, , six days after the Healthcare ETS’s six-month anniversary, OSHA issued a statement that:

“[while OSHA] intends to continue to work expeditiously to issue a final standard that will protect healthcare workers from COVID-19 hazards, and will do so as it also considers its broader infectious disease rulemaking[,]” it is “withdrawing the non-recordkeeping portions of the healthcare ETS. The COVID-19 log and reporting provisions … remain in effect.”

Here is the full statement posted on OSHA’s Healthcare ETS webpage:

Why Did OSHA Withdraw Portions of the Healthcare ETS? Continue reading →

New York City Private Employer Vaccine Mandate Will Continue Under New Administration

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By Dan C. Deacon

New York City employers finally have some clarity about whether the New York City private employer hard vaccine mandate will survive the transition from Mayor de Blasio to Mayor-Elect Eric Adams, and will be enforced under the new Administration.  Late last week, on December 30th, Mayor-Elect Eric Adams announced that he will keep Mayor de Blasio’s private-sector vaccine mandate in place, which took effect earlier this week – on Monday, December 27th, but with a focus on compliance – not punishment.  He also noted that the city will promptly analyze whether the mandate, along with other NYC vaccine requirements, will need to be updated to include obligatory booster doses in lieu of two vaccine shots, according to Adams’ winter coronavirus agenda passed out to reporters Thursday morning.

As outlined in our prior communication about the NYC mandate below (and in this blog article), beginning December 27, 2021, workers are required to provide proof of vaccination against COVID-19 to a covered entity before entering the workplace, and a covered entity must exclude from the workplace any worker who has not provided such proof, unless they are provided an accommodation for a disability or religious reason.

A “Covered entity” means a non-governmental entity that employs more than one worker in New York City or maintains a workplace in New York City; or a self-employed individual or a sole practitioner who works at a workplace or Continue reading →

OSHA Updates its Testing-Related FAQs about the COVID-19 Vaccination, Testing, and Face Coverings ETS

Eric J. Conn 3 Comments

By Conn Maciel Carey LLP’s COVID-19 Task Force

We wanted to share (hopefully) one last ETS update before Christmas.  As you know, when the Fifth Circuit issued its Stay of OSHA’s Vaccination, Testing, and Face Coverings Emergency Temporary Standard (ETS) in November, OSHA announced that it had “suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.”  Essentially, OSHA said it was “pencils down” completely – no longer responding to email inquiries about interpretations of ETS terms, no longer speaking/presenting about the ETS, and importantly, no longer producing additional compliance guidance or FAQs.

With the Sixth Circuit lifting the Stay last week, however, OSHA immediately updated its website to reflect that the agency “can now once again implement this vital workplace health standard.”  OSHA went right back to work on compliance assistance, not just licking its chops to start enforcing the rule.  Indeed, in the last couple of days, OSHA has updated its FAQs on its Vaccination and Testing ETS webpage, including several about the confusing and challenging testing elements of the ETS (See Section 6 – and 6P. through 6.X. are the news testing FAQs).  Below are a few of the notable new testing-related FAQs that address questions we were fielding frequently (and thankfully answering correctly):

Continue reading →

FAQs About OSHA’s COVID-19 Vaccination, Testing, and Face Coverings Emergency Temporary Standard

Eric J. Conn 6 Comments

By Conn Maciel Carey’s COVID-19 Task Force

In a Friday night surprise (December 17th), the US Court of Appeals for the Sixth Circuit dissolved the nationwide stay of OSHA’s Vaccination, Testing, and Face Coverings ETS, so the ETS is alive and well (unless the U.S. Supreme Court puts it back on ice).  Accordingly, it is time for employers to take the steps necessary to come into compliance with the ETS.  To help our clients and friends in industry, Conn Maciel Carey LLP’s national OSHA Practice has created this extensive set of Q&As about OSHA’s COVID-19 Vaccinate-or-Test ETS.

The Q&A document addresses the current status of the ETS and the legal challenges to it, who is covered and who is exempted from the rule, the core elements of the ETS (i.e., what is required and prohibited by the ETS, when the requirements kick-in, etc.), and other issues around enforcement and compliance strategy.

In addition to this FAQ resource, we have also been working with dozens of companies to help them develop custom, compliant written COVID-19 Vaccination, Testing, and Face Coverings Policies, along with the necessary ancillary forms, as required by the ETS.  We have a questionnaire that we can work through with you to understand and make the best policy choices for your organization (e.g., what cap you will set for paid recovery time; whether to supply test kits to employees or require them to take tests offsite; how you will communicate to employees the information required to be shared; etc.), and with those answers, we develop a customized written program including: Continue reading →

[BREAKING] Sixth Circuit Rescinds Stay of OSHA’s Vaccinate-or-Test Emergency Temporary Standard

Eric J. Conn 6 Comments

By Conn Maciel Carey’s COVID-19 Task Force

We apologize for interrupting what we hoped be a quiet, pre-holiday weekend for everyone, but we have very important and time sensitive news to share about the status of OSHA’s Vaccination, Testing, and Face Coverings Emergency Temporary Standard (ETS).  It was a very busy Friday night for everyone in the OSHA world.  In a remarkable turn of events, at 6:50 PM yesterday evening (December 17th), the US Court of Appeals for the Sixth Circuit dissolved the nationwide stay of OSHA’s Vaccination ETS that had been issued by the Fifth Circuit in November.

The Department of Labor and OSHA then immediately issued a statement that OSHA was moving forward with implementation and enforcement of the ETS, but also provided some enforcement relief for companies able to demonstrate good faith efforts to comply.  Then, within an hour of the Sixth Circuit decision being released, numerous parties filed an emergency application and motion with the US Supreme Court requesting the Supreme Court reissue a stay of the ETS.  And then, finally, shortly after midnight (approximately 1 AM last night), South Carolina along with 26 other State Attorneys General and a host of private entities also filed an emergency application for a stay.  What a night.

We briefly summarize the Sixth Circuit’s decision below and explain the lay of the land as it stands at this moment, what might occur next and, most importantly, what this means for employers across the nation.  Bottom line is that events are moving fast, but as we said a few weeks ago, do not put a fork in the ETS, and continue to prepare to come into compliance with it.  It is alive and well, at least until we hear from the Supreme Court.

Sixth Circuit Decision 

In a 2-1 opinion written by Obama-appointee Judge Jane Stranch and, notably, joined by Bush appointee Judge Julia Gibbons, the Sixth Circuit rescinded the nationwide stay of OSHA’s ETS that had been issued by the Fifth Circuit first an administrative stay on November 6th and then as a TRO on November 12th. The three-judge panel that heard the case consisted of one Obama appointee, one Bush (W.) appointee, and one Trump appointee.  Judge Gibbons (the Bush appointee) joined Judge Stranch, but she also wrote a separate concurring opinion.  Trump-appointee Judge Joan Larsen, who had purportedly been on a Trump’s short-list of potential nominees to the Supreme Court, dissented.

In a nutshell, the Court’s rationale for lifting the stay is that Continue reading →

New York City Issues Private Employer Vaccine Mandate

Eric J. Conn 1 Comment

By Dan C. Deacon

For those of you with establishments in New York City, note that this week, Mayor Bill de Blasio and the New York City Commissioner of Health and Mental Hygiene issued a private employer vaccinate mandate, and yesterday published this implementation guidance for employers.

The key provisions of the mandate include:

1.  Beginning December 27, 2021, workers must provide proof of vaccination against COVID-19 to a covered entity before entering the workplace, and a covered entity must exclude from the workplace any worker who has not provided such proof, unless they are provided an accommodation for a disability or religious reason.

    • “Covered entity” means:
      • a non-governmental entity that employs more than one worker in New York City or maintains a workplace in New York City; or
      • a self-employed individual or a sole practitioner who works at a workplace or interacts with workers or the public in the course of their business.
    • “Worker” means an individual who works in-person in New York City at a workplace. Worker includes a full- or part-time staff member, employer, employee, intern, volunteer or contractor of a covered entity, as well as a self-employed individual or a sole practitioner.
      • Worker does not include:
        • an individual who works from their own home and whose employment does not involve interacting in-person with co-workers or members of the public;
        • an individual who enters the workplace for a quick and limited purpose (such as to use the bathroom, make a delivery, or clocking in and receiving an assignment before leaving to begin a solitary assignment); or
        • non-City residents who are performing artists, college or professional athletes, or individuals accompanying such performing artists or college or professional athletes who do not have to display proof of vaccination pursuant to the Key to NYC program, Emergency Executive Order No. 316 and successor Orders.
    • “Workplace” means any location, including a vehicle, where work is performed in the presence of another worker or member of the public.
    • “Proof of vaccination” means one of the following documents demonstrating that an individual has (1) been fully vaccinated against COVID-19; (2) received one dose of a single-dose COVID-19 vaccine; or (3) received the first dose of a two dose COVID-19 vaccine, provided that a worker providing proof of only such first dose provides proof of receiving the second dose of that vaccine within 45 days after receiving the first dose:
      • A CDC COVID-19 Vaccination Record Card or other official immunization record from the jurisdiction, city, state, or country where the vaccine was administered, or from a healthcare provider or other approved immunizer who administered the vaccine, that provides the person’s name, vaccine brand, and date of administration. A digital photo or photocopy of such record is also acceptable.
      • New York City COVID Safe App showing a vaccination record;
      • A valid New York State Excelsior Pass/Excelsior Pass Plus;
      • CLEAR Health Pass; or
      • Any other method specified by the Commissioner as sufficient to demonstrate proof of vaccination.

2.  Workers in New York City who perform in-person work or interact with the public in the course of business must show proof they have received at least one dose of a COVID-19 vaccine by December 27th.

        • Workers will then have 45 days to show proof of their second dose (for Pfizer or Moderna vaccines).

Continue reading →

Employment Law Implications of the OSHA ETS: Medical and Religious Accommodation Requests

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By Ashley D. Mitchell

Published in the Federal Register on November 5, 2021, the Federal OSHA Emergency Temporary Standard on Vaccination and Testing (“ETS”) first major compliance deadline was December 6, 2021. However, as a result of a stay entered by the 5th Circuit, and the 6th Circuit’s refusal to grant the Biden Administration’s petition to move up the briefing schedule, OSHA cannot begin enforcing, and has ceased all action, including answering employer questions about, the standard. (For continued updates on the status of the ETS review our Employer Defense Report and OSHA Defense Report.) Accommodation,Sign,With,Sky,BackgroundAs outlined in greater detail in a previous blog, the ETS generally requires employers with 100 or more employees to: develop employer policies on vaccination; provide paid time off for vaccination and to recover from vaccination; require employees to provide proof of full vaccination or submit to weekly testing; require unvaccinated workers to wear a face covering; remove COVID-19 positive cases from the workplace; and inform employees about the requirements of the ETS, COVID-19 vaccine efficacy and safety, prohibited retaliation, and the criminal penalties associated with knowingly supplying false statements or documentation. Given the robust requirements of the ETS, employers would be well advised to put in place mechanisms for compliance with the ETS in the event the stay is lifted, particularly if there is no delay in compliance deadlines. One important consideration is how to handle ETS-related medical and religious accommodation requests.

1. Background

Title I of the Americans with Disabilities Act of 1990 (ADA) requires employers to provide a reasonable accommodation, so long as it does not Continue reading →

Employment Law Implications of the OSHA ETS: Paying for COVID-19 Testing

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By Conn Maciel Carey’s COVID-19 Taskforce

As the OSHA COVID-19 Vaccination and Testing emergency temporary standard (“ETS”) works its way through the courts in pending legal challenges, employers are still scrambling to position themselves in the event the ETS goes back into effect.  (Review our Employer Defense Report and OSHA Defense Report for full background on the ETS and the most recent updates on its current status.)  A key issue to consider is the cost of testing.

Background

Should the ETS go back into effect, employers with 100 or more employees must implement a program to facilitate (1) a COVID-19 vaccination requirement for all employees (known as a “hard mandate”) or (2) a combination of a COVID-19 vaccination requirement and weekly testing, plus face covering requirement, for those employees who choose not to get vaccinated (known as a “soft mandate”).  Under this soft-vaccine mandate, an employee may only report to the workplace after demonstrating either: proof of being fully vaccinated; or for employees who do not get vaccinated or decline to share their vaccination status, proof of a negative COVID-19 test result from within the last week.  Employees who are not fully vaccinated must also wear face coverings when indoors and when occupying a vehicle with another person for work purposes.

Under the ETS, a COVID-19 test must be: Continue reading →

[BREAKING] Fifth Circuit Orders a Stay of OSHA’s COVID-19 Vaccination, Testing, and Face Coverings ETS

Eric J. Conn 6 Comments

By Conn Maciel Carey’s COVID-19 Task Force

Emphasizing that the extraordinary power afforded to OSHA under the emergency provisions of the OSH Act should be delicately exercised, the US Court of Appeals for the Fifth Circuit issued a 22-page opinion late yesterday, November 12th, reaffirming after briefing by both parties the Stay of OSHA’s COVID-19 Vaccination, Testing, and Face Coverings emergency temporary standard (ETS) that it had ordered on November 6th. The Fifth Circuit panel ordered that OSHA may take no further steps to implement or enforce its newly issued ETS until further court order, and thus may not require employees of covered employers to undergo COVID-19 vaccination, take weekly COVID-19 tests, or wear a mask.

Why Did the Fifth Circuit Stay OSHA’s ETS?

Notably, the Fifth Circuit commented in a footnote that debates over the Biden Administration’s vaccine mandate have “roiled the country throughout much of the Fall,” and that the ETS (referred to as “the Mandate” by the three-judge panel) “affects every person in America one way or another.”  Drawing from a variety of sources—including White House Chief of Staff Ronald Klain’s retweet of an MSNBC anchor’s tweet characterizing the ETS as a “workaround” for a federal vaccine mandate, the Court refused to accept the government’s arguments that a sufficient emergency exists justifying a second COVID-focused ETS in less than 6 months.  Indeed, the Court found that prior statements by the Administration “belie the notion that COVID-19 poses the kind of emergency that allows OSHA to take the extreme measure of an ETS.”  To that end, the Court seized on the fact that more than 78% of Americans aged 12 and older are either fully or partially vaccinated and thus face “little risk at all” according to the Administration.

While the November 12 opinion was issued after the Fifth Circuit conducted an “expedited” review, the Court leaves little doubt as to how it will likely rule Continue reading →

As OSHA Finalizes Its Vaccination ETS, the EEOC Updates Guidance on Religious Exemptions to Vaccine-Mandates

Eric J. Conn 1 Comment

By Conn Maciel Carey LLP’s COVID-19 Task Force

Earlier this week, the EEOC finally updated its guidance on Title VII and Religious Objections to COVID-19 Vaccine Mandates, which will impact how employers will implement their various vaccination, testing, and masking requirements.

US law has long-recognized an exemption from mandatory work policies (including vaccine-mandates) based on sincerely held religious beliefs, pursuant to Title VII of the Civil Rights Act of 1964 (and equivalent state statutes). For employers, evaluating religious exemption requests can be tricky (certainly trickier than requests for medical/disability-based exemptions), as there is often no readily verifiable evidence to help ascertain whether an employee’s religious objection to the work policy is a sincerely held religious belief (or even a religious belief at all). Indeed, although it is permissible to attempt to obtain a supporting statement from a religious leader or another member of their community who is familiar with the employee’s belief system, and employee is not required to provide such a statement, as they may not be affiliated with an organized religion. Furthermore, as an end-around to COVID-19 vaccine-mandates, many employees nationwide are attempting to seek a religious exemption when their actual objections are really based in political, ethical, or personal beliefs.

In response to requests from the regulated community, the EEOC has attempted to provide more clarity so that employers can have more confidence in implementing their accommodations process, and in many instances, to push back on suspect claims by employees of the need for a religious exemption. The guidance does offer some useful tools for employers, but unfortunately, it is not as helpful as we had hoped it might be.

The theme of the EEOC’s updated guidance is that employers must make an individualized evaluation of each employee’s request for a religious accommodation. The EEOC renewed Continue reading →

California Adds Increased Meal/Rest Period and Workplace Safety Protections for Warehouse Employees Subject to Production Quotas

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By Ashley D. Mitchell

On September 22, 2021, California became even more labor friendly when Governor Newsom signed AB 701 which adds additional requirements to California’s existing meal and rest breaks rules for non-exempt warehouse employees. Effective January 1, 2022, employers covered by AB 701 must disclose all quotas to warehouse employees that the employee may be subject to.  Employers are subject to a rebuttable presumption of retaliation against employees who are subject to an adverse employment action within 90 days of engaging in protected activity under AB 701.  Employers must make the disclosure to each employee upon hire or within 30 days of the law going into effect.

Aimed at making large Amazon warehouses in the state safer, AB 701 covers employers with 100 or more employees at a single warehouse distribution center or 1,000 or more employees at one or more warehouse distribution centers in the state of California. Covered employers must provide to all non-exempt employees a written description of every quota the employee must comply with and may be subjected to discipline for failing to meet including “the quantified number of tasks to be performed or materials to be produced or handled, within the defined time period, and any potential adverse employment action that could result from failure to meet the quota.” For purposes of AB 701 a warehouse is classified by the following NAICS Codes: 493110 (for general warehouse and storage); 423 (for merchant wholesalers, durable goods); 424 (for merchant wholesalers, nondurable goods); or 454110 (for electronic shopping and mail order houses) but not 493130 (farm product warehousing and storage). If an employer fails to disclose an employee’s quota, the employer cannot take an adverse employment action against the employee for failure to meet that quota.

Quotas may not prevent: Continue reading →

Q&As About Fed OSHA’s New COVID-19 Vaccination and Testing Emergency Rulemaking

Eric J. Conn 3 Comments

By Conn Maciel Carey’s COVID-19 Taskforce

Last Thursday, September 9th, President Biden announced that he is directing OSHA to issue a new Emergency Temporary Standard (ETS) that would require many employers to provide paid time for employees to get and recover from getting vaccinated and to implement “soft” vaccine mandates; i.e., require employees either to be fully vaccinated or get weekly COVID-19 testing, as well as issuing new Executive Orders requiring federal contractors to implement “hard” vaccine mandates.

While we anticipated OSHA would reconsider the need for a broader COVID-19 ETS applicable beyond just the healthcare sector in light of the impact of the Delta variant, President Biden’s decision to use a new ETS focused on vaccinations and testing as a central element of his newly unveiled Path Out of the Pandemic – COVID-19 Action Plan raises a host of challenges for employers across the country.  To help our clients and friends in industry prepare for and navigate this emergency rulemaking, we have prepared an extensive list of Q&As about OSHA’s Emergency Rulemaking for a COVID-19 Vaccine-Mandate ETS.  Also, here are links to an article we prepared summarizing OSHA’s new emergency rulemaking, a recording of the webinar about the ETS we conducted last week, and the slides we used.

We understand from our contacts at OSHA that the agency will move much more quickly to prepare and send this ETS to the White House, so it is imperative that the employer community come together now to identify shared concerns and considerations and begin advocating to OSHA and OMB so that this new ETS is one with which industry can reasonably manage.  To that end, Conn Maciel Carey LLP is organizing a coalition of employers and trade groups to advocate for the most reasonable fed OSHA COVID-19 emergency rule focused on vaccination and testing possible.

For several reasons, we believe this emergency rulemaking may be the OSHA rulemaking that has the most opportunity for industry influence that we can recall.  First, Continue reading →

Employee Misconduct Defense, Discipline, and Employment Law Issues [Webinar Recording]

Theresa Jordan Leave a comment

On August 11, 2021, Lindsay A. Disalvo and Ashley D. Mitchell presented a webinar regarding Employee Misconduct Defense, Discipline, and Employment Law Issues.

Disciplining employees, a critical tool in enforcing workplace rules, has the potential to create problems, especially when relationships deteriorate and emotions run high. Even in situations where an employer is disciplining for the right reason, if it is handled incorrectly, a costly lawsuit or labor grievance could result. Employers, however, cannot ignore misconduct and/or poor performance that negatively impacts productivity, employee morale, workplace culture, or the organization’s ability to meet key goals. Consistent employee discipline can also benefit employers in litigation, union grievances, and inspections and investigations by the EEOC and OSHA.

This webinar will give you a blueprint to lawfully discipline employee and mitigate the risk of future litigation. Participants in this webinar learned about: Continue reading →