On January 13, 2022, the United States Supreme Court issued its opinion on the application for stay filed in National Federal of Independent Business v. Department of Labor. In that opinion, a six-member majority of the Court ruled that the Occupational Safety and Health Administration (OSHA) had exceeded its authority in issuing an emergency technical standard requiring the vaccination of employees of larger employers.…
Continue Reading Off Again: United States Supreme Court Blocks OSHA COVID-19 ETS

Late Friday, the United States Court of Appeals for the Sixth Circuit issued an Order and Opinion lifting the stay that previously had been entered by the United States Court of Appeals for the Fifth Circuit which had prevented the OSHA COVID-19 emergency technical standard (the “ETS”) that applied to employers with 100 or more employees from going into effect. This reversal puts many employers in the position of having to immediately restart compliance efforts that may have been paused during the pendency of the stay.
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Continue Reading On Again; Sixth Circuit Lifts Stay on OSHA COVID-19 ETS

A few things employers should consider as the New Year approaches

As a new year approaches, one thing many have in common is wondering about what lies ahead. Here are just a few things employers should be considering. The overarching theme? Compliance.

Every year, laws change. For employers, these changes flag new compliance issues. This year, perhaps more than any in recent history, this exercise is more critical. Congress is primed to enact new laws in the pending infrastructure package which has, in part, set this in motion. The Biden Administration and the President’s appointments to various agencies have also dramatically made this concern even more important. These changes will require employers to review how they have been operating over the years, and how these statutory and other legal developments will require them to alter their practices going forward. This article highlights a few of these items.

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Continue Reading Labor & Employment Compliance in 2022

COVID-19 has permanently changed the workplace we once knew. Employers needed to adapt to new legislation meant to deal with the unprecedented impact of the pandemic. Expansion of the California Family Rights Act, mandatory paid sick leave for COVID-related illness, extended workplace safety protections, and workers’ compensation coverage for employees based on the rebuttable presumption they contracted COVID-19 at the workplace were just some of the laws enacted to expand and enhance employee benefits in response to the pandemic.
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Continue Reading New 2022 California Employment Laws: How Businesses Can Protect Themselves

Nearly two months after President Biden unveiled his COVID-19 Action Plan, the federal Occupational Safety and Health Administration (OSHA) has issued an Emergency Temporary Standard (ETS) that requires all employers with at least 100 employees to establish, implement, and enforce a written policy mandating that each employee either be fully vaccinated against COVID-19 or submit to weekly COVID-19 testing and wear face coverings indoors. OSHA clarifies that the ETS is meant to strongly encourage employers to stipulate that its employees must be fully vaccinated against COVID-19, but includes a narrow testing and face covering exception—at least for now.

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Continue Reading OSHA Releases Highly Anticipated Vaccine Mandate ETS

Texas employers who have tried to adopt “best practices” with respect to the health and safety of their employees and customers during the past 18 months have faced quite a challenge. Disagreements between officials at the local, state, and national levels, and the healthcare professionals supporting those officials, have resulted in a variety of guidance, executive orders, and laws often imposing contradictory requirements with respect to operating limitations and requirements, masking requirements, social distancing, and, now, vaccination requirements. While many may differ on their political, religious, philosophical, or other bases for supporting or opposing such requirements, most employers have gotten to the point that they simply want to know what they need to do to keep the doors open while keeping employees and customers safe. However, the answer to the issue of whether vaccinations can be required of employees just got more difficult for Texas employers.

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Continue Reading Dilemma for Texas Employers: Require Vaccinations or Not?

The Solicitor of Labor has commented that the ETS is expected to be published in the coming weeks. The ETS will go into effect immediately upon publication except for those states with their own OSHA-type laws. Those states will have up to 30 days to conform their laws to the federal edict, and once they do so, the edict will apply to the same employers subject to the federal order, plus other employers the states choose to extend the rule to, such as public employers.
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Continue Reading To Vax or Not to Vax: No Longer a Question for Larger Private Employers Under Biden’s Vaccine Mandate

The American Rescue Plan Act of 2021 (“ARPA”) provides a premium subsidy for continuing coverage under the Consolidated Omnibus Budget Reconciliation Act (“COBRA”) for employees who lost their health insurance coverage as a result of an involuntary termination (other than gross misconduct) or a reduction of hours, known as Assistance Eligible Individuals (“AEIs”). This COBRA premium subsidy generally is available between April 1, 2021, and September 30, 2021, unless it ends earlier for AEIs who become entitled to other group health coverage or Medicare.
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Continue Reading The Window Is Closing for Employers to Notify Individuals About the Expiring ARPA COBRA Subsidy

As we reported in June, the Texas Labor Code was amended effective September 1 to expand liability for employers as to employee claims of sexual harassment. Specifically, the amendments to the Labor Code:

  • Impose liability for sexual harassment claims on more employers, by expanding the protections of the Labor Code to employers with as few as one (1) employee;
  • Open the door for potential individual liability by owners, supervisors, and managers for claims of sexual harassment;
  • Require an employer to take “immediate” and appropriate corrective action in response to a claim of sexual harassment, potentially accelerating an employer’s need under federal law to take “prompt” remedial action; and
  • Increase the Charge-filing period for those claiming sexual harassment from 180 days to 300 days.

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Continue Reading Reminder to Texas Employers: Update Your Harassment Policies and Training

On July 29, the Department of Labor (DOL) announced a final rule rescinding the Trump Administration’s Joint Employer rule. This move clearly reestablishes the DOL’s quest to broaden the scope of potential liability for businesses under the Fair Labor Standards Act (FLSA) for the wrongs of their subcontractors, franchisees and other entities. This move is consistent with the Biden Administration’s trend to reinstate the measures taken under the FLSA by the Obama Administration, including those taken to broaden the scope of who could be deemed joint employers under the FLSA. The rule promulgated by the Trump Administration had replaced an Administrator’s Guidance issued by the Wage and Hour Administrator of the Obama Administration, David Weil. Consistent with this trend, David Weil has been nominated to serve the current administration in the same role he held during the Obama Administration.
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Continue Reading DOL Rescinds Trump-Era Joint Employer Rule: Employers Beware!