Category: Labor & Employment

How Government Contractors Can Prepare for a Government Shutdown

The federal government’s funding is slated to deplete on September 30th, 2021. Congress is currently debating the legislation that will allow operations to continue beyond this date, but it remains to be seen whether or not the government will experience a temporary shutdown. Regardless, the Office of Management and Budget signaled for agencies to prepare for a gap in funding, and President Joe Biden’s White House is preparing for this outcome.

“Government shutdowns impact government contractors in significant ways. Work and payments suddenly stop, and contractors have to decide what to do with their skilled and knowledgeable workers, who suddenly have nothing to do for a company whose cash flow has taken a sudden hit,” said Guy Brenner, a partner in the labor and employment law department and head of the Government Contractor Compliance Group at Proskauer Rose LLP. “This is particularly difficult given that the length of the shutdown is difficult to predict.”

A government shutdown presents unique challenges, not only for federal agencies, but for government contractors and subcontractors as well. These challenges include (but are certainly not limited to) employee pay and overtime, unemployment benefits, the furloughing of employees and more. As a result, it’s important government contractors remain informed and prepare themselves for next steps, should the shutdown indeed take place.

What Do Government Contractors Need to Know About the Shutdown?

In years past, government shutdowns complicated pay and backordered work, and the ongoing COVID-19 pandemic adds another layer to the impending decision on September 30, 2021. With a possible shutdown approaching, government contractors should consider their options under their existing contracts. The looming possibility of a government shutdown creates an air of uncertainty, but workers can mitigate the effects with proper preparation. This includes provisions of the Worker Adjustment and Retraining Notification Act of 1988 (WARN Act) which impacts larger employers.

Typically under the WARN Act, employers must notify employees within 60 days of an upcoming large-scale layoff. The WARN Act applies if there is an “employment loss,” which includes a layoff exceeding six months, an employment termination or a 50 percent reduction in hours in each month over six months.

Another consideration for government contractors during a shutdown is furloughing employees. Often contract workers who are furloughed are not paid their owed wages until after the shutdown has ended and a spending agreement is made, sometimes taking many months before issuing the payments. In some instances, such as during the shutdown of 2018/2019, lawmakers may vote against paying contractors for their furloughed time.

Another complication begins when government contractors take a hit during the shutdown and require workers to use their paid time off (PTO) as compensation rather than back pay. And those with PTO still fare better than contractors who are considered non-essential and cannot rely on PTO. What are the options for those workers?

In addition to furlough and PTO, another potential option for government contractors and their employees during the shutdown is unemployment benefits. However, some furloughed employees may not be eligible for unemployment benefits. Government contractors should check state laws to determine eligibility. Government contractors can find additional resources from the U.S. Department of Labor, including fringe benefits, paid sick leave and pay requirements.

How Can Government Contractors Prepare for a Shutdown?

Despite the uncertainty, government contractors can prepare in advance for a government shutdown. E-Verify, the online system used by employers to check the employment eligibility of new hires, is run by the Department of Homeland Security and may be unavailable during a shutdown. To prepare for this, government contractors should complete I-9 paperwork as soon as possible if E-Verify is unavailable.

Another consideration for government contractors during a shutdown is employee benefits. Furloughed employees may have their benefits affected if a government shutdown happens for a long period of time. The longest government shutdown on record was for 34 days in 2018-2019, which was a partial shutdown, whereas the government is facing a full shutdown this time since the government hasn’t passed any funding bills.

If the government shuts down and employees’ hours are reduced, they may lose COBRA health plan coverage. If this happens, government contractors must send qualifying event notices to affected employees, and employees must be given the option to continue coverage under the plan for the duration of the furlough at the employee’s expense for the maximum COBRA continuation period.

If the government is shut down and employees are furloughed, government contractors should tell employees not to do any work. If employees work while furloughed, they must be paid a salary for the entire week. Aside from furlough, government contractors may also decide to allow employees to work a reduced number of hours, but the process needs to be analyzed carefully and managed tightly, due to requirements for exempt employees, salary requirements, local regulations for a reduction in compensation, as well as contractual obligations, overtime exemptions and any foreign work authorizations.

Government contractors should consider incorporating the cost impacts of a shutdown into their planning and allow for it in their contracts. Contractors should plan to establish a line of communication with contracting officers ahead of time to discuss what work might be halted just in case they are unavailable if the government shuts down. Additionally, small businesses that rely on government funding can also prepare by speaking with their bank before any upcoming funding deadlines to ensure they have the cash flow to stay afloat during the shutdown.

What are the Next Steps for Government Contractors?

Government contractors can start preparing now for a government shutdown by completing necessary I-9 paperwork, determining furlough and unemployment benefit eligibility, determining WARN Act eligibility as well as planning for COBRA coverage interruptions.

“When the government shuts down, contractors can feel sudden and serious economic and workflow impacts, and naturally want to react quickly. But doing so without careful thought and planning may only solve one problem while creating an even bigger and potentially more costly one,” Mr. Brenner said. “Wage and hour, immigration, benefits, unemployment insurance, and lay off laws are all issues contractors need to consider before taking action.”

Copyright ©2021 National Law Forum, LLC
For more articles on the government shutdown, visit the NLRGovernment Contracts, Maritime & Military Law section.

What Does Equal Pay Really Mean?

By now you’ve certainly heard of the U.S. women’s soccer team’s challenge to their pay arrangement. Back in the spring of 2019, the players sued the United States Soccer Federation (“USSF”) alleging they were unfairly compensated in comparison to the men’s soccer team–a dispute that has been going on since at least 2017. The federal court dismissed the pay claims on summary judgment, ruling that the women were not, in fact, paid less than the men per game played.

Recently the players appealed the federal court’s ruling to the 9th Circuit. In their opposition brief, the USSF argued that the women cannot challenge a payment schedule they expressly negotiated and agreed to via a collective bargaining agreement.

The case presents two very interesting and important issues on the fair pay landscape. The first question is whether an individual can challenge their pay as unequal when they expressly bargained for and negotiated that pay, especially where–as here–they had full knowledge of what employees of the opposite sex were paid.

The second issue is how much “market realities” (as the USSF has called them) are allowed to play a role in the Equal Pay Act analysis as a legitimate job-related factor other than gender (one of the statutory exceptions). For example, in 2018 and 2019, FIFA paid out $38 million to the winner of the men’s world cup, but only $4 million to the winner of the women’s world cup. That is, in the international market, the men’s soccer competitions (generally speaking, not just the U.S. men’s team specifically) sell more tickets and at higher prices, have more expensive sponsorship deals, and generate more revenue.

The USSF argues that because of the potential to generate more revenue from their competitions (even if they end up losing and failing to generate that revenue), the men stand to earn more in their contracts via win bonuses. In response, the women argue that they have, in fact, generated more revenue than the men’s team over the past few years, yet do not have the same bonus opportunities.

It will be interesting to watch how the 9th Circuit wrestles with these two issues, particularly as the result may have lasting impacts for individual employees making equal pay claims. For example, would pay transparency and negotiated salaries be a strong defense to later equal pay claims? Moreover, would revenue generation or even potential revenue generation be a strong defense even when actual performance suggests the lower-paid female employee is generating more revenue than the male employee?

The 9th Circuit will likely hear oral argument on the appeal in early 2022.

{ U.S. women’s soccer team players sought a collective-bargaining agreement that prioritized guaranteed salaries and benefits over potentially higher bonuses, and can’t now pursue “equal pay” claims based on a pay structure they rejected, the U.S. Soccer Federation argued . . . .

 https://www.wsj.com/articles/u-s-soccer-women-equal-pay-11632341799

©1994-2021 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.

Get Poked or Get Canned – Can You Terminate an Employee for Refusing the Vaccine?

The answer is it depends.

Why is the employee refusing the vaccine?

For employers mandating the vaccine, an employee’s refusal to receive it because he or she simply does not want to be vaccinated is likely fair game for termination. Typically, however, an employee will seek a reasonable accommodation that enables him or her not to get the vaccine, raising an objection pursuant to the Americans with Disabilities Act (a medical issue) or Title VII (a sincerely held religious belief). Those scenarios require an employer to entertain the request by engaging in an interactive process to determine, primarily, whether there exists a way to provide the accommodation without creating an undue burden (or hardship) on the employer. The threshold for the hardship analysis is much higher for a medical reason than a religious reason. Keep in mind that you do not have to remove essential functions of a job or create a separate position as a reasonable accommodation.

What if you have a union or a federal contract?

The issue becomes even more complicated if a union is involved or the employer is a federal contractor. With a union, you must make sure you bargain appropriately before imposing a change in working conditions.

On the federal contract side, those employees will fall under a vaccine mandate starting October 15, just like federal employees. In the past months, vaccine requirements have differed from site to site depending on the particular government contracting agent. For example, if the site lets visitors (including contractor/subcontractor employees who perform their duties onsite) enter with masks or a negative test as an alternative to vaccination, the employer will in most cases need to provide the same accommodation. If the site takes a more stringent approach and does not allow masks and negative tests as an alternative, the employer may be able to deny such a request and terminate the employee instead. Before you terminate an employee, make sure to check for any vacancies in which you can provide the accommodation. If no such vacancies exist, the employer should allow the employee to exhaust available sick or PTO time, as well as FMLA leave, if his or her vaccine refusal is based on a medical issue. For a religious issue, the employee would not qualify for sick time, but the employer should allow that employee to exhaust available PTO prior to termination.

What about the OSHA Emergency Temporary Standard?

We expect OSHA to issue its Emergency Temporary Standard (ETS) soon, which will shed light on the analysis, but we do not yet know exactly what that guidance will be. We expect, however, that exceptions based on disability or religious requests for accommodation will be a part of the rules, and the ADA and Title VII analysis will be necessary.

As always, stay tuned for additional guidance after OSHA issues its ETS.

© 2021 Bradley Arant Boult Cummings LLP

Article By Anne Knox Averitt, Chuck Mataya and Anne R. Yuengert of Bradley Arant Boult Cummings LLP

For more articles on mandatory vaccines, visit the NLR Labor & Employment section.

COVID-19: President Biden Targets Private Employers and Federal Employees and Contractors in His “Path Out of the Pandemic”

On 9 September 2021, President Biden announced his comprehensive national strategy for addressing the COVID-19 pandemic including multiple directives and actions targeted at federal, private-sector, and healthcare employers. The strategy includes regulatory action from the Occupational Safety and Health Administration (OSHA) and the Centers for Medicare & Medicaid Services (CMS) in addition to two Executive Orders, all of which include sweeping vaccination and COVID-19 safety mandates. Though the six-pronged action plan includes measures focused on vaccination efforts, protecting already vaccinated individuals, keeping schools safely open, increasing access to testing, safeguarding economic recovery, and improving care for those affected by COVID-19, this alert will address the specific directives affecting employers.

OSHA EMERGENCY TEMPORARY STANDARD FOR LARGE PRIVATE-SECTOR EMPLOYERS

As outlined in the President’s six-pronged strategy, the White House has directed OSHA to issue an emergency temporary standard (ETS) that would require private employers with 100 or more employees to either mandate the COVID-19 vaccine for its workforce or require weekly COVID-19 testing before reporting to a worksite. Though limited details were provided, this ETS would apply to approximately 80 million private-sector workers in the United States. As part of the ETS, covered employers would also be required to provide paid time off for time spent obtaining a COVID-19 vaccine as well as for recovery from post-vaccination symptoms. The ETS is anticipated to be published in the coming weeks.

As background, OSHA is authorized to issue emergency temporary standards under limited conditions, specifically when it has determined that workers may be in grave danger and a new standard is necessary for their protection in the workplace. After initial publication in the Federal Register, the temporary standard follows the usual rulemaking procedure for a permanent standard, though the timeline for a final ruling is within six months of publication. Finally, an ETS may be challenged in the appropriate U.S. Court of Appeals.1

OSHA most recently issued an ETS on 10 June 2021 that was limited to the healthcare industry. Prior to that, OSHA had not issued an emergency temporary standard since November 1983, and that one (related to asbestos) was invalidated by the U.S. Court of Appeals for the Fifth Circuit about four months later. It is reasonable to expect that a new ETS may also face legal challenges, not only in the regular course, but also due to a potential clash with state legislation and executive actions prohibiting certain requirements related to COVID-19 vaccinations.

EXECUTIVE ORDERS DIRECTED AT FEDERAL EXECUTIVE EMPLOYEES AND FEDERAL CONTRACTORS

The President’s plan also includes an Executive Order mandating the vaccine for federal executive branch employees, with exceptions only as permitted by law. Although few details have been provided, the Executive Order directs the Safer Federal Workforce Task Force (Task Force) to issue guidance within seven days as to the specific implementation protocols for affected agencies.

A separate Executive Order requires agencies to include a clause in certain federal contracts providing that contractors must comply with all workplace safety guidelines issued by the Task Force, with the specific protocols and any exceptions to be published by 24 September 2021. By 8 October 2021, the Federal Acquisition Regulatory Council, which is responsible for promulgating the Federal Acquisition Regulation (FAR), is required to (1) begin drafting the FAR clause required by the Executive Order and (2) recommend that agencies use their authority under FAR Subpart 1.4 to deviate from the FAR to include the Executive Order’s requirements in specific types of contracts. Agencies also are required to take steps to ensure that the Executive Order’s requirements are included in contracts and contract-like instruments that are not subject to the FAR, such as other transaction agreements, entered into on or after 15 October 2021. The clause will be included in contracts or contract-like instruments for services, construction, leases, and concessions. It also will be included in contracts and contract-like instruments subject to the Service Contract Act or entered into with the Federal Government in connection with Federal property or lands and related to offering services for Federal employees, their dependents, or the general public. The Executive Order specifically excludes certain types of federal agreements from compliance with the new requirement. Most notably, the Executive Order excludes federal grants, contracts below the simplified acquisition threshold (currently $250,000), and subcontracts solely for the provision of products.

EXPANDED CMS REGULATIONS FOR HEALTHCARE FACILITIES

The President’s plan also expands on the 18 August 2021 CMS emergency regulation requiring vaccination for nursing facility staff, by requiring employees of all healthcare facilities that receive funds from Medicare and Medicaid to be fully vaccinated. The new CMS directive will expand the vaccination mandate to hospitals, home care facilities and dialysis centers in the United States and will apply to nursing home staff as well as staff in hospitals and other CMS-regulated settings, including clinical staff, individuals providing services under arrangements, volunteers, and staff who are not involved in direct patient, resident, or client care. Although some states have begun to adopt vaccination mandates for the healthcare industry, the CMS directive will develop a uniform standard across all covered entities. CMS is in the process of developing an Interim Final Rule with Comment Period that will be issued in October.

PRACTICAL CONSIDERATIONS FOR EMPLOYERS

Given the broad scope of the President’s plan and the pending ETS, employers, including federal contractors, should evaluate coverage under any of the aforementioned mandates and work with counsel to develop and implement a compliance program that complies with federal, state, and local laws. Depending upon the scope of the ETS, there may be additional issues under the National Labor Relations Act and the Fair Labor Standards Act, as well as state wage and hour laws. Unionized employers should be cognizant of how these directives may impact obligations under collective bargaining agreements or whether a vaccine program would be a mandatory subject of bargaining. Finally, employers must address employee and applicant requests for a reasonable accommodation under both the Americans with Disabilities Act and Title VII of the Civil Rights Act if requiring vaccination as a condition of employment.

1 29 U.S. Code §655 (“Any person who may be adversely affected by a standard issued under this section may at any time prior to the sixtieth day after such standard is promulgated file a petition challenging the validity of such standard with the United States court of appeals for the circuit wherein such person resides or has his principal place of business, for a judicial review of such standard. A copy of the petition shall be forthwith transmitted by the clerk of the court to the Secretary.”).

Copyright 2021 K & L Gates
For more articles on mandatory COVID-19 vaccines, visit the NLR Coronavirus News section.

New York HERO Act Alert: COVID-19 Designated as Highly Contagious Communicable Disease

On September 6, 2021, New York State Commissioner of Health Howard A. Zucker designated COVID-19 as “a highly contagious communicable disease that presents a serious risk of harm to the public health in New York State.” As a result of the commissioner’s designation, employers are required to activate their airborne infectious disease exposure prevention plans in accordance with the New York Health and Essential Rights Act (NY HERO Act).

As we previously reported, on July 6, 2021, the New York State Department of Labor (NYS DOL), in consultation with the New York State Department of Health, published the Airborne Infectious Disease Exposure Prevention Standard and Model Airborne Infectious Disease Exposure Prevention Plan. Although the NYS DOL initially published the standard and model plan only in English, the NYS DOL has since furnished the standard and the model plan in Spanish. The industry-specific templates, for “Agriculture,” “Construction,” “Delivery Services,” “Domestic Workers,” “Emergency Response,” “Food Services,” “Manufacturing and Industry,” “Personal Services,” “Private Education,” “Private Transportation,” and “Retail,” are available only in English.

When the standard and the model plan were published, COVID-19 had not received the commissioner’s designation as a highly contagious communicable disease presenting a serious risk of harm to the public health. Now, because of the September 6, 2021, designation, employers with employees in New York may wish to ensure that they are complying with the applicable provisions of the NY HERO Act. Specifically, if not already completed, each employer shall:

  1. Immediately review . . . and update the plan, if necessary, to ensure that it incorporates current information, guidance, and mandatory requirements, issued by federal, state, or local governments related to [COVID-19];

  2. Finalize and promptly activate the . . . plan;

  3. Provide the verbal review [in accordance with the plan];

  4. Provide each employee with a copy of the . . . plan in English or in [Spanish, if identified as the employee’s primary language];

  5. Post a copy of the plan in a visible and prominent location at the worksite (except when the worksite is a vehicle);

  6. Ensure that a copy of the . . . plan is accessible to employees during all work shifts.

Per the act, if an employer has a handbook, the plan must be included in the handbook.

Because Commissioner Zucker’s designation requires activation of the plans, employers may also want to consider that the model plan and industry-specific templates provide that when a plan is activated, training “which will cover all elements” of the plan must be provided. Per the model plan and industry-specific templates, the topics to be covered during training include the following:

  1. The infectious agent and the disease(s) it can cause;

  2. The signs and symptoms of the disease;

  3. How the disease can be spread;

  4. An explanation of [the] … [p]lan;

  5. The activities and locations at [the employer’s] worksite that may involve exposure to the infectious agent;

  6. The use and limitations of exposure controls[;]

  7. A review of the standard, including employee rights provided under [the NY HERO Act].

The model plan and industry-specific templates also provide that the training will be furnished “at no cost to employees and take place during working hours,” or, if training cannot take place during normal work hours, that “employees will be compensated for the training time (with pay or time off).” In addition, the training is required to be “[a]ppropriate in content and vocabulary to [the] educational level, literacy, and preferred language” of each employee and “[v]erbally provided in person or through telephonic, electronic, or other means.”

The commissioner’s designation will remain in effect until September 30, 2021, at which point the commissioner will “determine whether to continue [the] designation.” Accordingly, employers may wish to continue to monitor guidance and information from the New York State Department of Health and the NYS DOL to determine additional or continuing obligations, if any.

© 2021, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.

Article By Simone R.D. Francis of Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

For more articles on the NY HERO Act, visit the NLR Labor & Employment section.

Labor Day 2021: State of the U.S. Labor Unions

Hard to believe, but Labor Day 2021 is already upon us. In addition to (hopefully) preparing for an extended, relaxing weekend with family and friends, that also means it’s time for my annual bird’s-eye look at the current labor relations landscape in America. While this year on the surface appears to be a mixed bag for unions, the labor movement may have reason to be optimistic in the coming years.

Let’s start with a look at the numbers. According to the Bureau of Labor Statistics’ annual report, union membership in the private sector rose on a percentage basis for the first time in years from 2019 to 2020. However, this percentage increase largely was attributable to a decline in overall workforce numbers related to the pandemic, as unionized employees were not hit with job loss to the same extent as their non-union counterparts.

Nevertheless, it wasn’t all good news for unions. According to a Bloomberg Law report, 13 major unions saw a decline in their membership ranks last year.

As the economy and soaring jobs market heats up, though, it should be expected that union membership numbers will increase. Further contributing to a likely increase in 2021 is the favorable legal landscape ahead for unions. Indeed, Congress currently is considering passing the PRO Act, which would, among other things, make it easier for unions to organize workforces. In addition, the National Labor Relations Board (NLRB) now has a pro-union majority for the first time in years. It is widely anticipated that the NLRB will issue a host of opinions favorable to unions, such as decisions that limit management flexibility to unilaterally alter organized workers’ terms and conditions of employment, and that it will promulgate rules to streamline the union organizing process.

In sum, unlike prior years, there appears to be a basis for optimism within the labor movement. We’ll see what they do with this potential momentum. Employers with unions and those desiring to remain union-free should continue to monitor legal developments and organizing trends so they can be prepared to navigate the changing landscape. In the meantime, hope everyone enjoys the Labor Day weekend.

© 2021 BARNES & THORNBURG LLP

Article By David J. Pryzbylski of Barnes & Thornburg LLP

For more articles on employment law, visit the NLR Labor & Employment section.

Considerations for Employers Thinking about COVID-19 Vaccine Mandates

Since the beginning of the COVID-19 pandemic, employers have dealt with many challenges related to ensuring a safe and healthy workplace for their employees. With the persistence of the highly transmissible Delta and Delta Plus variants, the rise in the number of positive tests and cases, and the potential impact of other variants, employers are wondering whether to delay the return of employees still working remotely and what safety measures should be implemented for those in the workplace. Some employers have re-implemented procedures that had been lifted, such as requiring all employees (vaccinated or not) to wear masks and limiting in-person meetings and other gatherings.

As part of this analysis, many employers are debating whether to mandate the COVID-19 vaccine for their employees. While several large private employers, including Disney, Google, Facebook, United Airlines, and Tyson Foods, have implemented vaccine mandates, other employers remain hesitant to take that step. Further, employers who want to mandate the vaccine may not know the best way to do so.

A vaccine mandate comes with various legal and practical risks, especially because relevant legal precedent and guidance surrounding an employer’s ability to mandate the COVID-19 vaccine is still fairly limited. Employers considering mandating vaccinations may wish to consider the following:

  • Percentage of Vaccinated Employees. Employers can ask about an employee’s vaccination status and even require proof of vaccination. The percentage of vaccinated workers may help employers determine whether a mandate is needed or how the mandate should be enforced.
  • Community Vaccination and Infection Rates. In addition to vaccination rates in the workplace, employers also may consider vaccination and infection rates in their local communities. This information can provide employers with some idea of the likelihood of employees being exposed and infected, infection trends, and also help them determine whether a mandate is needed.
  • Government Orders and Laws. The general consensus is that a federal nationwide vaccination mandate is unlikely, as the government’s authority to institute such a mandate is unclear. By contrast, it is well-established that states and municipalities have authority to mandate vaccines to protect public health. Some states and municipalities already have mandated vaccinations for certain groups of workers or facilities, such as workers in nursing homes, long-term care facilities, or health care and/or group facilities in general. On the other hand, several states have enacted laws with prohibitions on vaccine mandates. The majority of these laws against mandates apply only to state and local governments; employers and private schools in those states may still require vaccinations.
  • Feasibility of Reasonable Accommodations for Those Who Are Exempt. Although the Equal Employment Opportunity Commission (EEOC) has taken the position that employers may mandate the COVID-19 vaccine, employers must make exceptions for certain employees because of disabilities, medical contraindications, or sincerely-held religious beliefs. Under those circumstances, employers may need to engage in a reasonable accommodation process to determine whether and how reasonable accommodations can be provided. The employer will be required to provide the employee with a reasonable accommodation to the vaccination requirement unless it would pose an undue hardship or a direct threat to the workplace which cannot be mitigated. Employers must be prepared to identify and handle such exemption requests. More information regarding the EEOC’s guidance on COVID-19 vaccinations in the workplace can be found here.
  • Current Lack of Full FDA Approval for Some Vaccines. While the U.S. Food and Drug Administration (FDA) has now granted full approval to the Pfizer vaccine, Moderna and Johnson & Johnson’s Janssen vaccine maintain Emergency Use Authorization (EUA) status. This distinction may be important to employers because the Food, Drug, and Cosmetic Act (FDCA) includes a condition that potential recipients of an EUA product “are informed” of certain things, including “the option to accept or refuse [vaccination] administration.” Given that different vaccine clinics and other locations offering vaccines typically only offer one type, employers may want to consider how to provide information to employees regarding availability of certain vaccines or consider allowing more time for employees to obtain a particular vaccine.

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  • Collective Bargaining Obligations. Implementation of a vaccine requirement is likely a mandatory subject for collective bargaining, requiring employers to negotiate with the union representing unionized employees. Also, the union may request bargaining about the impact of a decision to mandate vaccination, requiring bargaining about issues like testing, union representation through the exemption process, and leave requests.
  • Concerns of Vaccinated Employees. Vaccinated employees may be worried about interacting with colleagues in the workplace who are unvaccinated. Employees may have young children at home who are unable to get the vaccine or family members living in the same household who are immunocompromised. Some employees may feel their employer should take more action with regard to vaccinations in order to ensure a safe and healthy workplace. Section 5(a)(1) of the Occupational Safety and Health Act contains a general duty clause which may provide such employees with a tool to support a claim that the employer failed to provide a safe and healthy work environment.

Employers may wish to consider all options to determine what measures work best for their own workplace:

Option #1: Encourage Rather than Mandate

One option is to encourage, rather than mandate, the vaccine. This may include offering various incentives, such as cash, time off, transportation to employees related to receiving the vaccine, educating employees, and/or having management lead by example. Employers who still see a high percentage of unvaccinated individuals, however, may feel a mandate is more appropriate.

Option #2: Implement a Soft Mandate

Some employers have recently opted for a “soft mandate.” The soft mandate requires that unvaccinated employees practice certain precautions, such as wearing masks, social distancing, and weekly testing; employers also may limit or prohibit unvaccinated employees from work-related travel. This approach has been encouraged by President Biden for federal workers and contractors, and certain cities and states (such as New York City and the State of California) are taking similar approaches for their public workers. However, given reports that the virus can infect and be transmitted even by vaccinated employees, some of the precautions noted above (such as masking and social distancing) may be appropriate for all employees.

Option #3: Health Plan Premium Surcharges

Some employers are considering implementing a premium surcharge for unvaccinated employees participating in the employer’s health plan as an alternative to terminating unvaccinated employees. These surcharges are likely to range from twenty to fifty dollars, similar to surcharges imposed for employees who smoke. Delta Airlines, however, recently imposed a two-hundred-dollar surcharge per month on unvaccinated employees. COVID-19 diagnoses are likely to generate higher costs and health insurance premiums due to serious illness or hospitalization. However, this may violate the Americans with Disabilities Act (ADA) due to discrimination based on a health-related condition and as there is limited data evidencing unvaccinated employees actually result in higher costs compared to vaccinated employees.

Option #4: Implement a Hard Mandate

Of course, employers may pursue mandates with strong enforcement measures, such as termination, for employees who choose not to be vaccinated. Employers who impose a hard mandate should consider how much time is appropriate for allowing employees to become vaccinated. Because the Pfizer vaccine requires four weeks between the first and second doses, and another two weeks before the vaccine is fully effective, this timing should be considered in setting a time period. Similarly, employers may want to consider whether and how they would like to help provide access to the vaccine, such as by paying for transportation, providing time off from work, or holding a clinic at the workplace. Employers also should consider how they will communicate and distribute information regarding the COVID-19 vaccine and any associated policies to employees and employee expectations, how they will track which employees who have obtained the vaccine, and how they will address relevant questions or concerns from employees. Additionally, employers may find it helpful to provide their employees with information regarding the business reasons for the mandate and the benefits of the mandate. Employees terminated for not complying with their employer’s vaccine mandate may not be eligible for unemployment benefits; their ability to do so will likely depend on state regulations as well as the appetite of unemployment compensation commissions (and employers) to deprive workers of any benefits.

Employers are encouraged to speak with competent legal counsel about these issues.

Copyright © 2021 Robinson & Cole LLP. All rights reserved.

Legal Industry News August 2021: Law Firm Hiring, Legal Innovation & Pro Bono

Summer is winding down and we’re back with the first August edition of our legal industry news roundup. Read on for the latest news in law firm hiring, pro bono work and law firm innovation.

Law Firm Hiring & Moves

John Hamilton joined Akin Gump’s New York office as a partner in the investment management practice group. Previously at Stradley Ronon Stevens & Young, LLP, Mr. Hamilton’s experience includes advising fund managers in a variety of areas, including credit funds, hedge funds and private equity. He also specializes in financial regulatory and transactional matters.

“The global hedge fund market is experiencing a period of rapid growth and there is an increased need from our fund manager clients for sophisticated advice and counsel,” noted Kim Koopersmith, Akin Gump chairperson. “John provides exactly what our clients need and is an ideal addition to our team. I am delighted to welcome him to Akin Gump.”

Cybersecurity attorney David Kitchen joined Norton Rose Fulbright as a partner, where he will assist the cyber team in the firm’s Denver office. Mr. Kitchen advises clients experiencing cybersecurity incidents, federal and international investigations and class action lawsuits.

Formerly at Baker Hostetler, Mr. Kitchen represents clients and companies in a wide array of industries, including healthcare, education, retail, hospitality, and professional services. Additionally, he is CIPP/US certified through the International Association of Privacy Professionals.

“David is an outstanding lawyer with impressive credentials in cybersecurity,” Managing Partner Jeff Cody said. “The demand for our leading national and global cyber offerings continues to increase, and David will help us to advise and protect our clients in the rapidly-changing technology landscape.”

Powers Pyles Sutter & Verville PC expanded its non-profit and employment law practices with the addition of Jeremy Lewin as a shareholder and principal. Mr. Lewin has experience in non-profit and employment law, previously serving as counsel for various universities, national retail chains, hospitals and manufacturers. He also served as General Counsel to the American Society of Anesthesiologists, and will continue in this position in parallel with his time at Powers.

“Jeremy has had an impressive career working with large associations and professional societies and he will be an asset to our non-profit law team,” said Peter Thomas, Managing Partner of Powers. “We also welcome his wealth of experience in employment law and look forward to Jeremy building this new practice at Powers.”

Pro Bono & Recognition

Morgan Lewis partner Joan Haratani received the American Bar Association’s 2021 Margaret Brent Women Lawyers of Achievement Award, which is given by the ​​Commission on Women in the Profession and honors women lawyers who achieved professional excellence and paved the way for other women’s success. Ms. Haratani is a mass tort attorney who specializes in California’s Unfair Competition Law (UCL), pharmaceutical and medical device liability doctrines and national mortgage foreclosure issues. The ABA also gave the award to:

NJBIZ “Law Power 50” included Danielle DeFilippis of Norris McLaughlin on its list, which ranks the most influential lawyers in New Jersey. Ms. DeFilippis is an intellectual property attorney who focuses on contracts, trademark prosecution and litigation, and is involved with the New York State Bar Association’s Intellectual Property board, and the International Trademark Association (INTA).

“It is an honor to be selected by NJBIZ to this list of highly regarded attorneys. I am fortunate to be able to service my clients among dedicated colleagues at Norris McLaughlin, who are committed to providing exceptional legal service in New Jersey and beyond,” says Ms. DeFilippis.

BTI Consulting Group added Bradley Arant Boult Cummings LLP to its list of “Frequently Recommended Law Firms” for 2021. Bradley Arant Boult Cummings is one of 26 firms recognized in the “Frequently Recommended Law Firms” list, a category that recognizes firms that exceed client expectations.

“It is an honor to be recognized in this prestigious list among such a high-caliber group of law firms. We are proud to be recommended for our level of service, commitment and quality,” said Jonathan M. Skeeters, managing partner at Bradley.

The New York State Bar Association Task Force on Voting Rights and Democracy named Strook Law Firm Special Counsel member Jerry H. Goldfeder as its newest chair. The task force is responsible for reviewing voting laws in the United States and considering reforms where necessary.

Mr. Goldfelder specializes in election and campaign finance law, regulatory compliance and public integrity investigations.

“We have assembled an impressive panel of highly regarded legal scholars and voting rights advocates. We will tap into their collective expertise to analyze the issues before us and help policymakers, the legal profession, and the public combat the restrictive laws that are being adopted or are under consideration in many states,”  Mr. Goldfelder said.

Legal Innovation & Awards

IAM Patent 1000 in 2021 recognized Polsinelli’s Intellectual Property Department for its patent prosecution and patent litigation capabilities. This is the second time Polsinelli ranked nationally on the IAM Patent 1000 list.

The guide recognizes the top patent professionals in key jurisdictions around the world. The guide is compiled from client and peer feedback from over 1,800 interviews.

Polsinelli’s specific rankings include:

  • United States: Colorado (Litigation and Prosecution)

  • United States: Illinois (Litigation and Prosecution)

  • United States: Missouri

  • United States: Texas (Litigation and Prosecution)

  • United States:  Washington (Prosecution)

Additionally, 16 Polsinelli attorneys earned a place in the 2021 IAM Patent 1000 individual rankings of the “world’s leading patent professionals.” They include:

Steptoe & Johnson PLLC teamed up with the West Virginia University College of Law and Street Law, Inc. to develop the Appalachian Legal Diversity & Inclusion pipeline to increase the interest in legal careers amongst high school students.

Attorneys from Steptoe and Johnson visit classrooms throughout the semester to discuss their careers, highlight aspects of the law and what it’s like to work in a law firm. Steptoe attorneys Russell Jessee and Alyssa Lazar led students through three sessions regarding contract law.

“I was particularly pleased that the subject-matter this time was contracts.  That allowed us to not only give the students insight into the law and legal careers through the lens of contract law, but we also could give the students practical advice about contracts they enter in their own lives,” said Mr. Jessee.

“Steptoe & Johnson was founded in West Virginia, and we remain committed to the state now and for generations to come. It is exciting to help make the Appalachian Legal Diversity & Inclusion Pipeline a reality in our endeavor to strengthen diversity and inclusion in the legal field,” said Christopher L. Slaughter, Steptoe & Johnson’s CEO.

Womble Bond Dickinson Columbia, S.C. Office Managing Partner Kevin Hall was a speaker at the 2021 Lavender Law Conference & Career Fair presented by the LGBT Bar. At the event, Mr. Hall participated in a panel discussion called “Advocacy with a Drawl, Y’all: A Case Study in Southern “No Promo Homo” Laws,” discussing his role as lead counsel in a federal lawsuit which led to the US District Court declaring South Carolina’s “No Promo Homo” law unconstitutional. The law barred educators from discussing same-sex relationships at K-12 public schools in South Carolina.

Copyright ©2021 National Law Forum, LLC

Article BY Hanna Taylor, Chandler Ford and Rachel Popa of The National Law Review / The National Law Forum LLC

For more articles on the legal industry, visit the NLRLaw Office Management section.

Another One Bites the Dust: You Might Be Your Brother Employer’s Keeper (Again)

The U.S. Department of Labor (DOL) has announced a final rule rescinding the Trump administration’s “Joint Employer Status Under the Fair Labor Standards Act” rule, which took effect in March 2020 and provides guidance for determining when multiple employers are considered joint employers and, therefore, jointly liable for labor law violations. The repeal of the rule will likely result in more workers receiving minimum wage and overtime protections under the Fair Labor Standards Act (FLSA) and, in turn, greater legal and financial exposure for employers.

The FLSA generally requires employers to pay non-exempt workers at least the federal minimum wage for all hours worked and at least time and one half the regular rate of pay for hours worked more than 40 in a workweek. Under certain circumstances, an employee of one business may be considered a joint employee of a second business. (The joint employer concept can arise in any context when one company’s workers perform work for another company, but most frequently it arises in the context of staffing agency or leased employees).  If the second business is deemed a “joint employer,” both companies might be liable to the worker for minimum wages and overtime pay under the FLSA.

The joint employer rule that became effective in March 2020 established a four-factor balancing test for determining joint employer status under the FLSA. In determining whether a second company is a joint employer of a worker, the test examines:

  1. Whether the company hires and fires the worker;
  2. Whether the company supervises and controls the worker’s work schedules or conditions of employment to a substantial degree;
  3. Whether the company determines the worker’s rate and method of payment; and
  4. Whether the company maintains the worker’s employment records.

In a news release announcing rescission of the rule, the Biden administration’s DOL concluded that the rescinded rule “included a description of joint employment contrary to statutory language and Congressional intent” and “failed to take into account the department’s prior joint employment guidance.”

The final rule repealing the prior rule becomes effective September 28, 2021. The prior rule made it more difficult for companies to be held liable as joint employers and was generally considered a positive development for the business community.

©2021 Roetzel & Andress

Article by Monica L. Frantz of Roetzel & Andress LPA

For more articles on the DOL, visit the NLR Labor & Employment section.

Can Employers Make COVID-19 Vaccinations Mandatory?

Now that the vaccines for COVID-19 are widely available in the United States, many schools are preparing for in-person instruction in the fall and more workplaces are starting to move away from remote work and bring their employees back into the office. Of course, many essential workers have remained in their workplaces throughout the pandemic. In order to protect their employees and customers from the pandemic virus, many employers in both the public and private sectors are requiring employees to get vaccinated before returning to work or as a condition of remaining at work. New York City has announced that all government employees need to get vaccinated by September 13, 2021, or else be subject to weekly COVID-19 testing.  President Biden announced a similar mandate – vaccine or testing – for federal government employees and contractors on July 29, 2021. The proliferation of employer vaccine mandates across the country has spawned a number of legal challenges by employees who want to keep their jobs but do not want to get vaccinated, and by unions who do not think such changes should be implemented unilaterally by employers. This blog explores some of the legal issues that federal and state courts will be addressing as these cases proceed.

Claims based on right to refuse “unapproved” COVID-19 vaccines

Plaintiffs in several lawsuits have argued – thus far unsuccessfully – that employers cannot impose vaccine mandates because the COVID-19 vaccines have only received Emergency Use Authorizations from the Food and Drug Administration, thus rendering the vaccines “unapproved” and “experimental.” Employees at Houston Methodist Hospital in Texas (Bridges v. Houston Methodist Hospital), Dona Ana Detention Center in New Mexico (Legaretta v. Macias), and Los Angeles County schools in California (California Educators for Medical Freedom v. Los Angeles Unified School District) have all argued that their employers’ requirements that they get the COVID-19 vaccine or face termination amounts to compelling them to participate in a medical experiment in violation of their rights under federal law.

Plaintiffs in all three cases point to 21 U.S.C. § 360bbb-3, a law governing the Secretary of Health and Human Services’ ability to grant Emergency Use Authorization to drugs or medical devices that have not received full approval from the FDA. The law says that the HHS Secretary must establish conditions to ensure that anyone who administers a product under an Emergency Use Authorization must inform patients “of the option to accept or refuse administration of the product, [and] of the consequences, if any of refusing administration of the product,” 21 U.S.C. § 360bbb-3(e)(1)(A)(ii)(III). The plaintiffs claim that this law gives them a right under federal law to refuse the vaccine, and that any employer mandate to the contrary is unenforceable. Some of the plaintiffs point to other sources of law to claim a right to refuse vaccination. For instance, the New Mexico plaintiffs pointed to Griswold v. Connecticut and Roe v. Wade, two famous Supreme Court cases holding that the constitution recognizes a right to privacy that encompasses access to contraception and abortion. They argue that this same right prohibits the Dona Ana Detention Center from terminating their employment if they refuse the vaccine. The California and Texas plaintiffs pointed to the Nuremberg Code of 1947, international laws adopted in the wake of the Holocaust that prohibit forced medical experimentation without informed consent. The plaintiffs basically have argued that the employers’ vaccine mandates are tantamount to the horrifying medical experiments conducted by Nazi doctors on concentration camp prisoners.

There is little chance that these arguments will be met with any sympathy by courts.  Contrary to the claims of the plaintiffs, the Centers for Disease Control and Prevention and the Equal Employment Opportunity Commission both recognize that federal law does not prevent employers from imposing vaccine mandates. The CDC website says: “The Food and Drug Administration (FDA) does not mandate vaccination. However, whether a state, local government, or employer, for example, may require or mandate COVID-19 vaccination is a matter of state or other applicable law.” Similarly, the EEOC says that “The federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19,” so long as employers allow for legally required reasonable accommodations for employees with disabilities or religious beliefs that do not allow for vaccinations. Furthermore, the Supreme Court first held more than 100 years ago, in its 1905 decision in Jacobson v. Massachusetts upholding a state law requiring smallpox vaccination, that the Constitution does not provide a right to opt out of vaccine mandates in the midst of a public health crisis. Accordingly, lower courts are unlikely to hold that there is a constitutional right to opt out of employer vaccine mandates in the midst of the COVID-19 pandemic.

The only court to weigh in on one of these cases has shown no patience for these arguments. On June 12, 2021, the United States District Court for the Southern District of Texas dismissed all of the claims brought against Houston Methodist Hospital, bluntly stating that the plaintiffs’ efforts to portray themselves as unwilling participants in medical experiments misstate the facts, and that any analogy to Nazi experimentation in concentration camps is “reprehensible.” Looking at Section 360bbb-3, the Court held that the statute only regulates the conduct of the HHS Secretary and does not create any rights that a private individual can enforce in a lawsuit. Furthermore, the Court noted that none of the plaintiffs are actually being coerced into taking the vaccine. Rather, the Hospital gave them the option to refuse the vaccine and told them the consequence of their refusal, namely, that they would be terminated from their job. “If a worker refuses an assignment, changed office, earlier start time, or other directive, he may be properly fired. Every employment includes limits on the worker’s behavior in exchange for his remuneration. This is all part of the bargain.”

Claims based on religious and disability discrimination

Even though employees will likely not be able to show that employer vaccine mandates violate federal law, particular employees may be able to show that they have a right to opt out of an employer vaccine mandate based on their religious beliefs or medical conditions. For example, in Coronado v. Great Performances Artists As Waitress Inc., Antonio Coronado, a service worker, brought claims under the New York State and New York City Human Rights Laws in state court, claiming his employers’ decision to place him on furlough until he got vaccinated violated his “religious and ethical convictions” and discriminated against him “based upon his physical condition.” There are likely to be similar lawsuits brought by employees all over the country under federal, state, and local anti-discrimination laws. Although the court has not yet weighed in on Mr. Coronado’s complaint, the EEOC has provided guidance that will help show how such claims are likely to fair under the federal laws prohibiting employment discrimination on the basis of religion, Title VII of the Civil Rights Act of 1964, and disability, the Americans with Disabilities Act. Check out our blog post, “COVID-19 Vaccinations: What Employees and Employers Need to Know” to learn more.

Other vaccine mandate developments to come

Although most vaccine mandate litigation is focused on federal law concerning Emergency Use Authorization and anti-discrimination law, some opponents to vaccine mandates are taking other approaches. For instance, a case filed in the United States Court for the Northern District of Illinois argues that the employer’s imposition of a vaccine mandate – even one that allows accommodations for employees’ religious beliefs and disabilities – alters the terms and conditions of employment in violation of Collective Bargaining Agreements entered into by the plaintiff-union. See International Brotherhood of Teamsters, Local 743 v. Central States, Southeast and Southwest Areas Health and Welfare Pension Fund. This claim sidesteps any argument about the vaccine approval process as well as the employer’s legitimate interest in promoting workplace safety. Instead, the claim characterizes the employer’s vaccine mandate, which requires unvaccinated employees to use all of their paid time off and then face discipline (up to and including termination) unless and until they get vaccinated, as imposing a new restriction on the union members’ employment without going through the negotiation process required by the agreements and federal law protecting union rights. For instance, the National Labor Relations Act requires an employer to collectively bargain in good faith with the union over subjects that directly impact “rates of pay, wages, hours of employment, or other conditions of employment.” 29 U.S.C. §§ 158(a)(5); 159(a). The Teamsters Union argued that the employer’s unilateral imposition of the vaccine mandate creates a new “condition of employment,” and requirements on how employees must use their paid time off unlawfully circumvented the mandatory bargaining process. It remains to be seen how the court will handle this claim, but other unions with members opposing vaccine mandates are likely to bring similar claims if the Teamsters Union has any success here.

Some state legislators opposed to vaccine mandates are circumventing courts altogether and are proposing state laws that outright prohibit COVID-19 vaccine mandates. While many such laws are still under consideration, two states have successfully enacted laws curtailing employers’ ability to require their employees to get vaccinated. On April 28, 2021, Arkansas enacted Act 977, which prohibits any state or local agency or entity from requiring a COVID-19 vaccine as a condition of employment, education, entry to facilities, receipt of services, or issuance of a license, certificate, or permit. Ark. Code § 20-7-142. Montana went even further.  As of May 7, 2021, it is unlawful in Montana for any private or government employer to discriminate against any employee based on the employee’s vaccination status or possession of an “immunity passport,” although health care facilities are allowed to inquire about employees’ vaccination status and implement reasonable accommodations to protect employees and patients from any dangers posed by non-vaccinated employees. See Mont. Code Title 49, Chapter 2, Part 3. It remains to be seen if employers or employees seeking a safe workplace will challenge these state laws in court, and how courts will weigh an employer’s interest in workplace safety against the state’s interest in regulating commercial activity and protecting individuals against employer restrictions.

As more employers demand their employees get vaccinated and courts weigh in on existing lawsuits, the tactics of legal resistance to vaccine mandates are sure to adapt and change.

Katz, Marshall & Banks, LLP

Article By Joseph E. Abboud of Katz, Marshall & Banks, LLP

For more articles on COVID-19 vaccines, visit the NLR Coronavirus News section.