President Biden Installs Two Deputy Assistant Secretaries at Workplace Safety and Health Agency to Jump-Start Agenda

On Jan. 19, 2020, the day before President Biden was sworn in as the 46th president of the United States, his transition team announced that James Frederick will be appointed deputy assistant secretary of labor for occupational safety and health, a non-Senate confirmed position. In this role, Mr. Frederick will run the Occupational Safety and Health Agency (OSHA) until President Biden nominates someone for assistant secretary of labor for occupational safety and health and the Senate confirms the nominee.

Since September 2019, Mr. Frederick has been a part-time consultant for ORC HSE Strategies, LLC, where he provided member employers with, among other things, advice on and assistance with regulatory and legislative matters and assessment and integration of health and safety management systems. Before that, he was assistant director of the Health, Safety & Environment Department of the United Steel, Paper and Forestry Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (USW), the largest industrial union in North America. As assistant director, Mr. Frederick testified before congressional panels and federal agencies regarding safety and health issues including workplace violence, beryllium, silica, hazard communication and ergonomics. Mr. Frederick worked for more than 20 years at USW, which represents workers employed in the metals, rubber, chemicals, paper, energy, and government and service sectors.

In addition to installing Mr. Frederick to a leadership position within OSHA, the new administration also announced that Joseph T. Hughes will serve as deputy assistant secretary for pandemic and emergency response for OSHA. Previously, Mr. Hughes was director of the National Institute for Environmental Health Sciences Worker Education and Training program, which provides grants to unions and nonprofit organizations to train workers on occupational safety and health.

It is unclear whether President Biden will formally nominate Mr. Frederick to be the permanent assistant secretary of labor for OSHA or whether Mr. Frederick will remain within the agency’s leadership if the president nominates someone else to head the agency. It is also unclear when President Biden will officially nominate someone for the position and when the Senate will hold a hearing on the nomination. As a point of reference, the Senate did not confirm Dr. David Michaels, assistant secretary of labor for OSHA during the Obama administration, until December 2009, nearly a year after President Obama assumed office.

Because a permanent assistant secretary of labor for OSHA will likely not be confirmed for at least a few months, if not more, Mr. Frederick and Mr. Hughes will likely play a significant role in jump-starting the Biden administration’s workplace safety agenda. This includes, among other things, assessing the need for and enacting an enforceable standard that would require employers to take steps to protect workers from contracting COVID-19 at the workplace. To the extent OSHA adopts an emergency temporary standard (or permanent standard) related to COVID-19, or infectious diseases more generally, OSHA may look to the COVID-19 safety and health regulations that “state-plan” states like Virginia, California, Oregon, and Michigan have enacted as a model.


©2020 Greenberg Traurig, LLP. All rights reserved.
For more, visit the NLR Labor & Employment section.

EEOC Says Employers May Mandate COVID-19 Vaccinations – Subject to Limitations

With one pharmaceutical company already receiving emergency use authorization for its COVID-19 vaccine, and a second drug maker apparently on the cusp of receiving authorization, employers, eager to return to normal business operations, are considering whether they can require that their employees be vaccinated.  In analyzing this issue, employers are looking to the Equal Employment Opportunity Commission (EEOC) for direction on their ability to require vaccinations, given the legal protections under the Americans with Disabilities Act (ADA) and other federal employment laws.

On Wednesday, December 16, 2020, the EEOC delivered welcome news in the form of a revised pandemic guidance concluding that employers generally can mandate that employees receive a U.S. Food and Drug Administration (FDA)-authorized or approved COVID-19 vaccine.

That EEOC guidance, however, includes a variety of cautionary instructions for employers, including for example, potential restrictions on disability-related questions and recognized protections that must be afforded to employees seeking exemption from vaccination requirements due to medical conditions or sincerely held religious beliefs.

The following summary of the guidance provides some helpful information for employers on this complex topic:

  1. Can an employer require that employees receive one of the new FDA-authorized COVID-19 vaccinations?

ANSWER: Generally, yes.  The EEOC stated that equal employment opportunity laws “do not interfere with or prevent employers from following CDC or other federal, state, and local public health authorities’ guidance and suggestions.”  However, there are potential complications that employers must consider before implementing a mandatory vaccination program.

The EEOC confirmed that vaccination itself is not a medical examination, but it also pointed out that certain medical-related questions need to be posed to an individual before the vaccine is given to assure that the person does not have a medical condition that makes the vaccine unsafe. The EEOC explains that those questions can constitute “disability-related inquiries” regulated by the ADA, which employers may only ask under certain circumstances.

Notably, the EEOC indicates that the limitations on asking those disability-related inquiries do not exist when the vaccine is given (and the questions posed) by a third party that is not controlled by the employer such as a pharmacy or healthcare provider rather than by the employer directly or by a healthcare provider working under contract for the employer.  It also explained that it is permissible for an employer to offer the vaccination to employees on a voluntary basis, provided that the employee’s decision to answer pre-screening, disability-related questions is entirely voluntary.

Certainly, the most significant limitation on a mandatory program is that the employer has to ensure that it properly considers requested exemptions by an employee from the vaccination requirement because of the worker’s (i) sincerely held religious beliefs protected under Title VII or (ii) medical conditions which make receipt of the vaccine dangerous or otherwise inappropriate for that individual consistent with the reasonable accommodation requirements of the ADA.

  1. Can an employer ask an employee if he or she has already received the vaccine or, similarly, require proof that the employee has been vaccinated?

ANSWER:  Generally, yes. The EEOC guidance explains that these particular questions do not constitute a “disability-related inquiry” because an employee may choose not to have the vaccine for a variety of reasons wholly unrelated to any medical condition.  However, an employer has to meet certain requirements if it wants to find out why an employee has not received the vaccine. Questioning the employee about the reasons that individual has not been vaccinated does constitute a “disability-related inquiry” because of the possibility that it will elicit information about a disability.

That inquiry can only be made, according to the EEOC, if the question is “job-related and consistent with business necessity” as provided under the ADA. To meet this job-relatedness standard, the employer will need to establish that the worker’s failure to be vaccinated would pose a “direct threat” to the well-being of that employee or others with whom the employee would have contact as part of his or her job duties. Language elsewhere in the EEOC pandemic guidance suggests that an employer should be able to establish that “direct threat” standard if the employee has significant contact with other workers or third parties as part of performing his or her job duties.

  1. Can an employer have its own medical staff or a contracted healthcare provider conduct the vaccinations?

ANSWER:  Generally, yes. The EEOC guidance does not suggest an employer is barred from having its own in-house vaccination program or contracting directly with an outside healthcare provider to administer the vaccinations to the company’s employees. However, as indicated above, the EEOC does indicate that there are potential limitations on the employer either directly, or through a contracted service provider, asking pre-vaccination medical questions.  For that reason, some employers may mandate the vaccine but not administer it directly to employees.

  1. Can an employer fire an employee who refuses to be vaccinated? 

ANSWER:  Possibly, in limited circumstances.  The EEOC guidance reminds employers that it will need to make reasonable accommodations to employees seeking an exemption due to disability-related reasons or religious objections and will need to follow the established reasonable accommodation process under either the ADA or Title VII before taking any adverse employment actions.  The EEOC cautions employers that if it can establish that an employee who is not vaccinated poses a direct threat (that cannot be accommodated without an undue hardship), the employer can exclude the employee from the worksite, but the employer cannot terminate the employee without further consideration of the employee’s legal protections or other possible accommodation, including whether the employee can perform his or her job remotely.  In assessing hardship, the EEOC noted that the prevalence in the workplace of employees who already have received a COVID-19 vaccination and the amount of contact with others, whose vaccination status could be unknown, may impact the undue hardship consideration.

  1. Does the EEOC guidance mean that all employers should adopt a mandatory vaccination program?

ANSWER:  Not necessarily; a mandatory vaccination program may not be the best choice for many employers.  First, any such program would require that employers implement appropriate procedures with respect to processing of disability and religious accommodation requests.  Any employer with a mandatory vaccine program must ensure that there is no retaliation against employees who request an accommodation under the ADA or Title VII.  There may also be retaliation protection under Section 11(c) of the Occupational Safety and Health Act of 1970 pertaining to whistle blower rights for an employee who refuses vaccination because of a reasonable belief that he or she has a medical condition that creates a real danger of serious illness or death (such as serious reaction to the vaccine).

Further, polling data continues to show that a significant percentage of Americans prefer not to receive the COVID-19 vaccine.  Some employees, for example, may be wary of the vaccine given how rapidly it was developed.  As a way of recognizing this issue, the EEOC guidance points out that the FDA authorization for these COVID-19 vaccines is only pursuant to the Emergency Use Authorization standard—which is different than an FDA approval (licensure) of a vaccine—and therefore these vaccines have not received all of the prolonged consideration by the FDA that is typical of common vaccinations such as the vaccines for seasonal influenza or chickenpox.

As a result, employers mandating the vaccine should be prepared for some resistance from employees.  Additionally, it is important to remember that the EEOC guidance is only that—guidance—and not a law. Consequently, some employees may still legally challenge mandatory vaccination programs under various theories and there is no guarantee that a court will react favorably to a particular legal challenge. There are also, as explained above, important legal nuances and limitations with a mandatory program even under the EEOC’s guidance.

Also, while not an EEO issue, for employers with a unionized workforce, the employer must consider bargaining requirements prior to unilaterally implementing a mandatory vaccine policy.  Additionally, employers may need to consider state law obstacles to mandatory vaccination in some jurisdictions.

What is clear is that if an employer wants to pursue a mandatory vaccination program, the company’s management, together with its legal and HR teams, should engage in significant planning and develop a program detailing how the process will work from beginning to end and carefully consider the potential legal limitations identified by the EEOC in its guidance.


© 2020 Bracewell LLP

For more, visit the NLR Coronavirus News section.

Can U.K. Employers Make COVID-19 Vaccinations Mandatory?

So, can employers mandate that their workforce receive the vaccine? Employers have a legal duty to ensure the health and safety of their workforce as far as reasonably possible, so such a requirement would appear to be an effective means of satisfying this duty. However, whilst there may be certain settings where such a requirement is reasonable — for example, in health care or other high-risk areas — employers should be very cautious about pursuing a policy of mandatory vaccination since this could have a number of legal implications.

Primarily, such a policy could expose an employer to claims, including for discrimination and/or constructive dismissal if an employer were to take detrimental or disciplinary action because an employee refuses to be vaccinated and such refusal is related to a characteristic that is protected under U.K. discrimination law (namely, age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex or sexual orientation). For example, there is a risk of maternity or disability discrimination where employees who are pregnant or suffering from a medical condition that amounts to a disability are not able to have the vaccine and are consequently treated less favourably by their employer than employees who have had the vaccine. Likewise, such a requirement could also amount to age discrimination if younger employees, who are likely to be the last category of people being offered the vaccine as part of the NHS rollout, are treated less favourably than older employees who have had the vaccine.

A policy of mandatory vaccination could also infringe employees’ right to privacy under Article 8 of the Human Rights Act 1998. Technically an employer may be able to justify such a breach, but this is likely to be difficult where less personally invasive measures are available to employers to maintain the health and safety of their workforce, such as social distancing and the wearing of face coverings.

Employers should also consider the data protection implications of mandating vaccinations since holding data on whether an employee has had the vaccine is likely to be considered a special category of data under applicable data protection law (meaning that it needs more protection because it is sensitive). In order to lawfully process such data, there must be a lawful basis for the processing, and additional conditions and supporting documentation must be put in place, including conducting an impact assessment to identify and minimise any risks.

Whilst a policy of mandatory vaccination may present difficulties from a legal perspective, employers may want to put in place nonmandatory guidance about the vaccine to encourage their employees to have it. Additionally, employers should not rely on vaccination to replace other protective measures in the workplace, such as social distancing and the wearing of face coverings, and should continue to assess their workplace risks as the pandemic unfolds.


© 2020 Faegre Drinker Biddle & Reath LLP. All Rights Reserved.

For more, visit the NLR Labor & Employment section.

Want to Know if Your Employees Received the COVID-19 Vaccine? Some Best Practices to Consider

While its rollout has been slow, the vaccine is being administered across the U.S. and in other countries. As of January 15, 2021, nearly 36 million doses of a COVID-19 vaccine have been administered, just over 11 million in the U.S. For a variety of reasons, organizations want to know whether their workforce members (employees, contractors, etc.) have been vaccinated. Some are trying to assess prospects for return to work, while others want to provide incentives to get the vaccine, and still others are managing customer demands to know if their vendor’s workforce has been vaccinated.

The EEOC has provided some guidance on the issue:

K.3. Is asking or requiring an employee to show proof of receipt of a COVID-19 vaccination a disability-related inquiry? (12/16/20)

No.  There are many reasons that may explain why an employee has not been vaccinated, which may or may not be disability-related.  Simply requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry.  However, subsequent employer questions, such as asking why an individual did not receive a vaccination, may elicit information about a disability and would be subject to the pertinent ADA standard that they be “job-related and consistent with business necessity.”  If an employer requires employees to provide proof that they have received a COVID-19 vaccination from a pharmacy or their own health care provider, the employer may want to warn the employee not to provide any medical information as part of the proof in order to avoid implicating the ADA.

So, based on the answer to the question posed above, we know the EEOC’s position is that asking or requiring employees to provide information on whether or not an employee was vaccinated is not a disability-related inquiry under the Americans with Disabilities Act (ADA). But that may not be the end of the inquiry. These are several considerations and best practices that organizations might consider before putting such requests to their workforce members.

  • Who wants the information, and why? As noted above, there could be several reasons for wanting to ask employees about their vaccination status. Those reasons can affect compliance and best practice considerations. For example, if an organization is working to accommodate customer demands for vaccination status of the organization’s employees who are performing services at the customers’ facilities, the organization might want to consider, among other things:
    • Does it need to provide the information to the customer?
    • Is consent/authorization necessary?
    • How should the information be transmitted?
    • Who at the customer would have access to that information?
    • Will the customer safeguard it?
  • What steps can be taken to limit compliance risk? If an organization decides to ask workforce members about their vaccination status, there are steps it can take to minimize compliance risk. For instance, an organization can minimize the chance of an ADA violation by (i) designing the request so it is not likely to elicit information about a disability, (ii) not asking why an individual did not receive a vaccination, and (iii) warning the employee not to provide any medical information as part of the requested proof of receipt of a COVID-19 vaccination. Similarly, employers that are subject to the California Consumer Privacy Act (CCPA) and wondering whether their notice at collection to California employees needs to cover vaccination information may decide to provide notice in the abundance of caution.
  • Is it necessary to even ask employees directly…couldn’t the organization look at its health plan’s claims information for vaccine-related administration charges? Aside from being arguably more administratively difficult, this method likely would be considered a violation of the HIPAA privacy rule. Plan sponsors may not use protected health information under HIPAA for an employment purpose without the employee’s authorization.  
  • Does the collection and processing of vaccination information raise data privacy and security risks? Even if making the request is not a disability-related inquiry, it may be considered a medical inquiry, and the employee’s response, confidential medical information. While not subject to HIPAA in the employer-employee context, this information still may have protections under state statutory and common law. Consider, for example, that several states, such as California and Florida, include “medical information” as part of the definition of “personal information” under their breach notification laws. Accordingly, if that information is breached, which could include access to the information by an unauthorized party, notification may be required.

Additionally, statutory and common law obligations exist to require employers to safeguard employee personal information, which may include information about their physical health, such as vaccination status. Thus, maintaining reasonable safeguards to protect such information is prudent. This might include access management measures and record retention and destruction policies. It also may include having clear guidelines for making disclosures of this information and determining whether an authorization is needed before such information may be disclosed or accessed by a third party.

These are just some of the issues organizations may find themselves grappling with as COVID-19 vaccinations become more available. Thinking them through carefully should help organization minimize their compliance and legal risks as they continue to manage their businesses through this pandemic.


Jackson Lewis P.C. © 2020
For more, visit the National Law Review Coronavirus News section.

Can Employers Fire Rioters? Employers’ Rights in Policing Employee Off-Duty Conduct and Employment Law Consequences of the Capitol Riots

Within days of the January 6, 2021, riot at the U.S. Capitol, employees who were observed as part of the mob entering the Capitol were discharged by their employers. Some of the individuals involved in the events at the Capitol were knowingly filmed as part of the insurrection (and many were seen posing for selfies).

A photograph of a rioter wearing clothing with the word “Auschwitz” prominently displayed has been widely disseminated. Other rioters were photographed and videoed carrying Confederate flags or nooses. In some instances, employers saw images of their employees and took action in response. For example, one rioter was reportedly discharged by his employer after an image circulated of him storming the Capitol while still wearing his employee badge around his neck.

In addition to those who directly participated in the breached at the Capitol, before and after the riot, employees discussed—on social media—the events and expressed their views in support of or in opposition to the insurrection, or on the issue of wearing masks or shirts expressing threatening or offensive views.

Even if most of the conduct occurred outside the workplace, coworkers—and often community members—who have seen images of employees involved in the riot, expressing support for the riot, or wearing masks or clothing with some of the messages of the rioters, are voicing complaints to employers.

Private employers have significant discretion to discharge employees, even for off-duty conduct, especially conduct that is unlawful. While public employers may have less discretion, they tend to have more rules that specifically outline what constitutes unlawful off-duty behavior. And while some states have laws that protect political speech or lawful off-duty conduct, those laws would not protect employees from discharge for their illegal or violent conduct or threats. Most states, for instance, would not prohibit employment actions based on some of the clothing with logos and insignias that rioters were wearing. The following are answers to frequently asked questions about these issues.

Do private-sector employees have free speech rights to make anti-Semitic, racist, or other inflammatory statements or social media messages?

No, not under federal law. Employees often have the mistaken belief that their statements enjoy blanket protection under the First Amendment. The First Amendment specifically prevents the federal government from interfering with freedom of speech, but it does not guarantee that right in private settings, including in private workplaces (and social media platforms). Therefore, a private-sector employee’s speech (whether made in person or in writing on social media) are not shielded from employment consequences under the mantle of freedom of speech. Such employee expression would also include the wearing of t-shirts, sweatshirts, or masks with offensive or harassing messages, as were seen in images from the Capitol riot. With the rise of social media, employers have quickly become aware of employees’ off-duty behavior from the reports of other employees. After the neo-Nazi, white-supremacist rally in Charlottesville, Virginia, August 11–12, 2017, it took only a few hours for participating individuals to be identified and for employers to be called to take action against them.

Note that Connecticut state law extends freedom-of-speech protections to private employees. As noted below, other state laws prohibit discrimination based on lawful off-duty conduct, which could include speech. Even there, in the case of the riot at the Capitol, an employer might be able to take action based not on an employee’s speech but based on the employee’s unlawfully entering of the Capitol building.

Can employers discharge employees for off-duty conduct?

It depends. Some states have laws that ban employers from taking adverse employment action against employees based on lawful off-duty conduct. Presently, California, Colorado, Louisiana, New York, and North Dakota prohibit employers from firing or retaliating against employees for off-duty lawful activity, including speech. Arguably, this could include conduct that their employers and coworkers may find offensive. However, even in these states, illegal conduct, including unlawful entry into the U.S. Capitol, looting, or violence, would not be protected.

In the remaining states, laws do not exist that would preclude an employer from taking action against an employee based upon the employee’s off-duty conduct.

In fact, employers may face legal, reputational, and cultural risks by ignoring off-duty conduct, especially where the conduct may constitute harassment of a member of a protected class. For example, some rioters were seen carrying the Confederate flag, brandishing nooses, and wearing t-shirts or displaying tattoos with unquestionably offensive—and in some cases threatening—slogans like “Camp Auschwitz.” Rioters also apparently erected a gallows with a noose outside the Capitol. These symbols and messages are historically significant and threatening based on race and religion. Images of a coworker carrying or wearing these symbols may cause other employees to be uncomfortable in the workplace, and, in most states, may form the basis for employment action.

Can employers discharge employees who participate in protests?

It depends. Employees who participate in legitimate, peaceful political protests are protected by law in over a dozen states and jurisdictions, including in California; Colorado; Guam; Louisiana; Minnesota; Missouri; Nebraska; Nevada; South Carolina; Utah; West Virginia; Seattle, Washington; and Madison, Wisconsin. Those jurisdictions bar employers from retaliating against employees for engaging in political activities. New Mexico protects employees’ right to express their political opinions. As previously noted, some jurisdictions protect employees’ lawful off-duty conduct, including speech. Other states and jurisdictions—including the District of Columbia, Illinois, Iowa, Louisiana, New York, and Utah; Puerto Rico; the U.S. Virgin Islands; Broward County, Florida, and Urbana, Illinois—specifically prohibit employers from discriminating against employees based on their political party membership, election-related speech, or political activities.

However, the events of January 6, 2021, went beyond a political protest to illegally storming the Capitol. Such illegal conduct would not be protected. Further, threats and expressions of racist violence or harassment are not political speech. So while employers may consider applying their policies and expectations consistently to peaceful protesters on different sides of an issue, conduct that is not comparable (e.g., storming into the U.S. Capitol as compared to peacefully attending a rally) need not be treated the same. After the events that occurred in Charlottesville, Virginia, in 2017, employers have grappled with how to make sure that they are protecting their employees and their companies’ reputations while not disciplining employees for lawful off-duty conduct.

An employer may wish to consider various factors prior to taking adverse action against an employee for off-duty activity, including how the employee’s conduct may reflect on the company and its employees. Such considerations may also include whether employees will be required to work with a coworker who has made offensive, racist, discriminatory, or hateful comments regarding an employee’s immutable characteristics, such as race, sex, or sexual orientation. More importantly, an employer may want to consider whether the employee engaged in violent conduct such that the employee will be seen as having a propensity for violence that could make coworkers feel unsafe. Moreover, this violent off-duty conduct could put the employer on notice and potentially give rise to negligent retention claims.

In sum, employers may want to assess the potential damage to a company’s culture and reputation (both internally and externally) that may follow from condoning or condemning employee comments and conduct. Many employers have chosen to err on the side of standing up against racism, anti-Semitism, and threats to safety and democracy.


© 2020, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.
For more visit the NLR Labor & Employment section.

It’s Time for Employers to Revisit Their Employment Policies to Be Ready to Address Political Disputes Among Coworkers

With political division in the United States on full display in the midst of a pandemic, Americans are faced with deepening rifts that touch not only their social circles and family units, but also their work lives. It therefore behooves employers to recognize the reality that disagreements about politics are likely to arise in one form or another in the workplace. With that in mind, employers should review their employment policies and related practices to ensure they are ready to address workplace disputes centered on politics, especially in light of the telecommuting arrangements that many employers are still utilizing during the pandemic.

The First Amendment’s right to free speech generally does not cover private employers, so employers are not required to permit their workplaces (virtual or otherwise) to be veritable political soapboxes. That said, employees in the private sector do have certain workplace rights relevant to politics and subject to applicable state law, including—in Texas, for example—the right to paid voting leave and the right to attend political conventions (if eligible to participate or a delegate). Further, employees generally have the right to be free from harassment based on a protected class and have certain protections against workplace bullying or violence of any kind.

Keep in mind that even though a lot of employees are still working remotely during the ongoing COVID-19 pandemic, email accounts, social media outlets, and general virtual connectivity create other avenues for discrimination, retaliation, harassment, bullying, or threats between employees. Frankly, as some assert, the virtual “wall” may embolden individuals to say things that they otherwise would not. Employers must therefore strike an appropriate balance between the competing interests and employment rights in play in a deeply divided workforce when it comes to politics.

The following policies should be reviewed and updated (as necessary) and implemented to strike that balance:

Codes of Conduct and / or Harassment / Discrimination Policies: Generally, neither Texas nor federal laws protect individuals from discrimination based on their political affiliations or political opinions, but some state laws have related protections. See, e.g.Cal. Lab. Code § 1101 (prohibiting employers from discriminating against employees based on employees’ political activities or affiliations); Wis. State. § 111.365(1) (stating that “employment discrimination” includes discrimination against an employee for “declining to attend a meeting or to participate in any communication about religious matters or political matters”). Of course, current political issues involve a number of protected classes, such as race, national origin, gender, and sexual orientation. So the potential for there to be workplace discrimination, harassment, and bullying based on protected classes under the guise of political affiliations or opinions is very real. Employers must therefore ensure they have implemented employment policies prohibiting discrimination (including discrimination and related bullying in a virtual or remote working environment) and establishing procedures for employees to lodge complaints about discrimination. They should also train all employees, including managers, regarding the same.

Social Media: For better or worse, social media outlets have moved even more into the front lines of politics this election cycle. The potential for discrimination and harassment is likewise increasing with the advent of new and more pervasive social media technology. The Texas Workforce Commission (TWC) minces no words about this reality when it states, “while the technology has improved dramatically, there has been no corresponding upswing in common sense or decency in society,” when it comes to social media usage. Social media policies should therefore make clear that employees are not allowed to purport to speak on the employer’s behalf on social media or otherwise use social media outlets to discriminate against or harass coworkers.

Computer / Internet Usage: Similarly, employers should exercise their rights to monitor employees’ work emails and use of company computers and prohibit the use of company technology and Internet to discriminate against or harass coworkers. Such policies should clarify that employees have no reasonable expectation of privacy in company computers and work email accounts. Note, however, that under the federal Stored Communications Actemployers generally do not have the right to monitor employees’ personal email accounts, even if the employee uses a work computer to access the personal account. That said, discriminatory or harassing communications sent by an employee to a coworker using either a work or personal account are potentially actionable and can serve as the basis of a legitimate complaint by the victim of the same.

These are certainly not the only policies that are in play in these unprecedented times, but they are key places for employers to start as they consider these issues in their workplaces. Employers should ensure such policies are up to date and provided to and acknowledged by their employees. And, as always, employers are well-advised to involve their senior management team and appropriate legal counsel when workplace disputes and issues arise, including when reviewing, updating, and implementing personnel policies.


© 2020 Winstead PC.
For more, visit the NLR Labor & Employment section.

“Gig” Workers May Become Eligible to Receive Equity Compensation

The Securities and Exchange Commission (the “SEC”) recently voted to propose temporary rules to permit companies to provide equity compensation to certain workers known as “gig” or “platform” workers.

Under the Securities Act of 1933 (the “33 Act”), every offer or sale of securities must be registered with the SEC unless the issuer relies upon an exemption to such registration. Recognizing that the offers or sales of securities in the form of equity compensation differ from the regular process of raising capital from investors, a limited exemption is provided to issuers under Rule 701 of the 33 Act. Rule 701 currently exempts certain sales of securities by private companies made to compensate employees, consultants, and advisors.

Through the proposed new Rule 701, the SEC is recognizing the existence of certain types of employment relationships in the “gig economy” that fall outside the scope of the traditional employer-employee relationship. These are the “gig” or “platform” workers who have become important to the economy with the increased use of technology. Gig workers use a company’s internet platform to find a specific type of work or “gig” to provide services to end-users. Some common examples are ride-sharing, food delivery, and dog-sitting services. These workers are generally not considered employees, consultants, or advisors, and thus have not been eligible to receive securities pursuant to compensatory arrangements under Rule 701. Under the proposed amendment to Rule 701, however, companies would be permitted to compensate these platform workers with equity compensation, subject to certain conditions.

For an issuer to compensate platform workers pursuant to the proposed new Rule 701, the platform workers will have to provide bona fide services pursuant to a written contract or arrangement by means of an internet platform or other technology-based marketplace platform or system provided by the issuer. Additionally, the issuer is required to operate and control the platform, the proposed issuance of securities to the platform worker must be pursuant to a written compensation arrangement or plan, the issuer must take reasonable steps to prohibit transfer of the securities offered to the platform worker, and the securities issued must not be subject to individual bargaining or the worker’s ability to elect between payment in securities or cash. The offering per worker must be within certain caps on the amount ($75,000) during a 36-month period and a percentage of the value of the compensation (15%) received by the platform worker during a 12-month period. This exemption, if adopted, would be available for a period of five years.

The proposal is subject to a 60-day comment period following its publication in the Federal Register.

Given the benefits that equity compensation offers to both employers and employees, this exemption should provide benefits to both issuers and platform workers in the “gig economy.”


©1994-2020 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.
ARTICLE BY Daniel I. DeWolf of Mintz
For more, visit the NLR Corporate & Business Organizations section.

Costs of COVID-19 Vaccines: What We Do and Don’t Yet Know

The roll-out of vaccine approvals has led to some confusion over what charges consumers might be asked to cover. This echoes the confusion previously discussed with respect to COVID-19 diagnostic and antibody test pricing. But consumers, providers, and others that will have any involvement with vaccine production, distribution, or administration should be aware that the Coronavirus Aid, Relief, and Economic Security (CARES) Act provides different rules for treatment (including testing) than it does for preventative care, like the recently approved vaccines.

The CARES Act provides that all insurance plans that are subject to the Affordable Care Act’s preventative services coverage standards must cover any qualifying coronavirus preventive services, including approved vaccines, without cost-sharing. It also provides that Medicare plans must cover the cost of the COVID-19 vaccine and its administration, without cost-sharing. This coverage applies to both in- and out-of-network providers. In short, if the primary purpose of a medical visit is to receive a covered vaccine, then the vaccine recipient should not be responsible for any out of pocket costs. However, if their appointment or doctor’s visit includes health services unrelated to COVID-19—such as bloodwork—the recipient may be charged for those services.

Notably, federal rules require that coverage must begin to apply within 15 days of a vaccine’s approval by the Advisory Committee on Immunization Practices (ACIP), accelerating the usual timeline required for plans to incorporate a new recommendation. Insurance plans are therefore currently required to cover the cost of both of the vaccines that have been approved in the United States. (The ACIP provided its interim recommendation for the Pfizer-BioNTech COVID-19 vaccine on December 12, 2020 and subsequently issued its interim recommendation for the Moderna COVID-19 vaccine on December 19, 2020.)

Not all health care plans are covered by these requirements. Plans that are not subject to the ACA’s preventative services coverage standards are not subject to the CARES Act and its vaccine coverage requirement. These plans—which could include short-term health plans, fixed indemnity plans, or some grandfathered plans—may take varying approaches to vaccine coverage. It appears that these plans can require that beneficiaries pay cost sharing for vaccines or can exclude recommended vaccines from coverage altogether. Individual states may ultimately require plans to cover the vaccine and waive cost-sharing. Alternatively, the plans may decide, for any number of reasons (including, e.g., concerns about employee health and safety) to provide coverage, though they may or may not decide to waive cost-sharing. At least one such plan has already said that COVID-19 vaccine costs will be “shareable.”

Several open questions remain. First, it is unclear how much the vaccine could cost (either to recipients or to insurers) in the future, following the conclusion of the public health emergency.

Second, uninsured vaccine recipients may see differences in billing in the long term. Providers that administer an approved COVID-19 vaccine to uninsured recipients will be reimbursed for vaccine administration costs through a provider relief fund created by the CARES Act. The federal government has not indicated how it will handle these reimbursements if that relief fund should be depleted.

Third, because vaccine coverage arises from the ACA’s preventative services coverage standards, the Supreme Court’s forthcoming decision on a pending challenge seeking to invalidate the law’s individual mandate could greatly impact this area, and potentially eliminate or reduce cost coverage.

Finally, and of particularly salience for price gouging concerns, even though the vaccine itself is free, vaccine recipients might still see bills. Some providers can legally charge an administration fee for giving the shot, according to the CDC. Those providers can seek reimbursement for such a fee from either the recipient’s “public or private insurance company or, for uninsured patients, by the Health Resources and Services Administration’s Provider Relief Fund.” Several states prohibit price gouging for medical services, and it remains to be seen whether and how any fees could be justified or challenged under different state laws.

In summary, most but not all COVID vaccines costs should be covered without cost sharing to recipients, related additional charges for the treatment visit might not be covered, and all the non-covered charges likely are subject to state price gouging laws.


© 2020 Proskauer Rose LLP.
For more, visit the NLR Coronavirus News section.

Mixed-Status Families to Finally Receive Stimulus Checks

Last week, Congress passed the $900 billion coronavirus relief package that was signed into law by President Donald Trump on December 27, 2020. In this package, the U.S. government will allow mixed-status households to receive stimulus checks. In mixed-status families, at least one member of the household must have a Social Security number (SSN). These families were denied stimulus checks in the first round of payments offered in late March this year.

Who Can Expect Stimulus Checks?

United States citizens and legal permanent residents (green card holders) will receive $600 in direct aid, even if they previously filed their taxes jointly with an undocumented spouse. An additional $600 checks will be sent for each dependent child. The new compromise is also retroactive to the mixed-status families where at least one household member has an SSN. These families will receive checks for $1,200 per household and $500 per child as previously allocated by the CARES Act.

Individuals with an adjusted gross income higher than $75,000 in 2019, heads of household who earned more than $112,500, and couples who made $150,000 will not be eligible for the checks. Undocumented immigrants and other non-citizens who do not have an SSN and file individual tax returns are ineligible for aid. U.S. Citizen children will not receive this aid at least one parent has an SSN.

Many undocumented immigrants and some non-citizens are ineligible for Social Security Numbers. They use government-issued Individual Taxpayer Identification Numbers (ITIN) to pay taxes. Deferred Action for Childhood Arrivals (DACA) and Temporary Protected Status (TPS) beneficiaries have Social Security Numbers.

Reactions to the Coronavirus Relief Package

“It was unfair and absurd that millions of taxpayers in need of assistance to feed their families, many in the immigrant community with U.S. citizen children and working on the frontlines, were previously denied access to these survival funds,” said Senate Democratic Leader Chuck Schumer. “I am pleased we were able to extend this economic lifeline to additional families in need.”

“Given there are 5.5 million immigrants working at the front lines of this crisis as essential workers, Congress should provide protection to all tax filers in the U.S regardless of immigration status,” Kerri Talbot, the Director of Federal Advocacy at The Immigration Hub, a lobbying group, said in a statement.

The nonprofit Migration Policy Institute estimated that 14.4 million people in mixed-status families were excluded from relief. This included 5.1 million who are either citizens or green cardholders. Specifically, the figure includes 1.4 million spouses and 3.7 million children who are citizens or legal residents.


©2020 Norris McLaughlin P.A., All Rights Reserved
For more, visit the NLR Election Law / Legislative News section.

Consolidated Appropriations Act, 2021: Unemployment Relief

The latest round of COVID-19 relief in the Consolidated Appropriations Act, 2021 will revive many aspects of unemployment relief rolled out in the CARES Act in March, although the Act reduces many of the original features.

The Act provides $286 billion for unemployment relief, which includes the following:

  • Reinstates enhanced federal unemployment insurance, providing an additional $300 per week for all workers receiving unemployment benefits through March 14, 2021. This replaces the earlier $600 added subsidy that expired in July.
  • Expands and extends the Pandemic Unemployment Assistance (PUA) program through March 14, 2021. Coverage extends to the self-employed, gig workers, and others in non-traditional employment.
  • Extends the Pandemic Emergency Unemployment Compensation (PEUC) program through March 14, 2021, providing additional weeks of federally funded unemployment benefits to individuals who exhaust their regular state benefits.
  • Increases the maximum number of weeks an individual may claim benefits through regular state unemployment plus the emergency federal programs to a total of 50 weeks.
  • Allows workers who have PUA/PEUC time left on March 14, 2021 (and who remain otherwise eligible) a “transition period” to continue to use the time for an additional three weeks, through April 5, 2021.
  • Affords states options for retaining an individual’s 2020 weekly benefit amount through March 14, 2021, ensuring that individuals will continue to receive maximized state benefits through the duration of PUA/PEUC as the new benefit year rolls in.

The Act also includes a technical amendment that confirms that shared work plans qualify as unemployment benefits for purposes of the $300 subsidy payment. For new filers, some states may reinstate the waiting week for receipt of benefits, as the Act reduces reimbursement from 100% to 50%.


Jackson Lewis P.C. © 2020
For more, visit the NLR Labor & Employment section.