In a clear response to the recent Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard (ETS) issued by the Biden Administration, Iowa, Tennessee, Utah, and Florida recently have joined the expanding list of states passing laws curtailing the use of COVID-19 vaccine mandates by private employers.

More than 10 states have now passed such laws, even as the OSHA ETS has been stayed temporarily by the U.S. Court of Appeals for the Fifth Circuit and a related, consolidated lawsuit by several state attorneys general and some private employers challenging the ETS is now scheduled to be heard by the Sixth Circuit.

Read our full coverage here.

The EEOC has recently updated its What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws to include a section on Retaliation and Interference.

The update to EEOC’s guidance reviews anti-retaliation protections under the federal equal employment opportunity (EEO) laws including Title VII of the Civil Rights Act (Title VII) and Title I of the Americans with Disabilities Act (ADA). The updated guidance provides some reminders for employers in the COVID-19 context:

  1. Current employees (including full-time, part-time, probationary, seasonal, and temporary), job applicants, and former employees are protected by the anti-retaliation provisions of the EEO laws. In addition, anti-retaliation protections apply regardless of an applicant’s or employee’s citizenship or work authorization status.
  2. Retaliation includes an employer’s action in response to an activity protected under the EEO laws that could deter a reasonable person from engaging in protected activity. However, usually, retaliation “would not include a petty slight, minor annoyance, or a trivial punishment.”
  3. An employee who has engaged in protected EEO activity may still be subject to discipline for legitimate reasons if the employer is acting based on non-retaliatory and non-discriminatory reasons that would otherwise result in discipline.
  4. The ADA prohibits not only retaliation for protected EEO activity but also “interference” with an individual’s exercise of ADA rights, such as asking for a reasonable accommodation.

These considerations under EEO laws which are always good to remember, are especially important as employers cope with unique situations with accommodation requests and high tensions in the workplace due to COVID-19.

Jackson Lewis will continue to monitor changes in COVID-19 guidance and regulations impacting the workplace.  If you have questions or need assistance, please reach out to the Jackson Lewis attorney with whom you regularly work or any member of our COVID-19 team.

The U.S. Court of Appeals for the Sixth Circuit has won the much-anticipated Multi-District Litigation lottery and will get to decide the merits of the challenges to the Occupational Safety and Health Administration’s (OSHA) COVID-19 vaccine Emergency Temporary Standard (ETS). Under the ETS, employers with at least 100 employees must adopt a vaccination policy that requires employees to be fully vaccinated or submit to at least weekly testing.  Read the latest on this litigation and what it means for employers.

Puerto Rico Governor Pedro R. Pierluisi has issued an Executive Order (EO) requiring all private sector employers with at least 50 employees to adopt COVID-19 vaccine or testing requirements.

Under EO 2021-075, which is similar in scope to the recent Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard, such employers must require their employees to provide:

  • Proof of COVID-19 vaccination;
  • A negative test result at least every seven days; or
  • Certified proof of recovery within the last three months from COVID-19.

For more information about these requirements, read our full article.

The D.C. Council has adopted legislation that “removes one of the biggest obstacles workers say prevents them from getting the COVID-19 vaccine” by ensuring paid time off for both vaccination and recovery from any side effects. D.C. Mayor Muriel Bowser is expected to sign the “COVID Vaccination Leave Emergency Amendment Act of 2021” into law. The adopted legislation also expands some benefits of the District of Columbia Family and Medical Leave Act, while extending several protections enacted under prior emergency legislation. Read our full coverage here.

The Centers for Medicare & Medicaid Services (CMS) has issued an Interim Final Rule (IFR) establishing the COVID-19 vaccination requirements for staff employed at Medicare- and Medicaid-certified providers and suppliers. The IFR requires covered staff to be fully vaccinated against COVID-19 by January 4, 2022, or have received an approved religious or medical exemption or deferral by that date. Read our overview of the rule and next steps for employers.

One day after the Occupational Safety and Health Administration (OSHA) released an Emergency Temporary Standard (ETS) titled “COVID-19 Vaccination and Testing; Emergency Temporary Standard”, a panel of the U.S. Court of Appeals for the Fifth Circuit granted a nationwide stay of the OSHA ETS. Read full coverage from our Workplace Safety and Health colleagues.

Less than two months after receiving direction from President Joe Biden, the Occupational Safety and Health Administration (OSHA) has issued an Emergency Temporary Standard (ETS) covering employers with at least 100 employees. Employers must comply with many of the requirements within 30 days and begin required testing within 60 days of the November 5, 2021, effective date. Read our full coverage here.

In June, California relaxed many of its COVID-19 restrictions, including allowing fully vaccinated individuals to go without a face covering indoors, with limited exception. Also in June, Cal/OSHA passed an amended Emergency Temporary Standard (“ETS”) that allowed for fully vaccinated employees to go without a face covering in most situations.

Read the full article on Jackson Lewis’ California Workplace Law Blog.