Photo of Autumn Sharp

OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) is here, and employers have only about 30 days to start complying. On November 4, 2021, in response to President Biden’s call for an emergency standard (see our prior blog here), OSHA issued the ETS. As expected, the rule requires employers with 100 or more employees to ensure employees are either vaccinated or test weekly for COVID-19 .

Covered employers need to move quickly. First, by December 5th, 2021, employers must comply with several requirements under the ETS, such as providing paid time for employees to get vaccinated and requiring masks for unvaccinated workers in the workplace.

Next, covered employers must decide whether they will mandate vaccination for all employees or instead allow employees to test weekly in lieu of vaccination.  Employers who mandate vaccination must require employees to have their final vaccination dose – either their second dose of Pfizer or Moderna, or single dose of Johnson & Johnson – by January 4, 2022. Note that, in a departure from most existing vaccine mandates, employees do not have to be “fully vaccinated” by this deadline, and they just have to have had all required shots.  Employers who elect testing or vaccination must ensure that employees who have not received the necessary doses begin providing a verified negative COVID-19 test on at least a weekly basis after January 4.

Here’s what employers need to know now.

Require vaccines, or test and mask. The ETS requires employers with 100 or more employees to develop, implement, and enforce a mandatory COVID-19 vaccination policy-unless employers instead establish, implement, and enforce a policy allowing employees who are not fully vaccinated to elect to undergo weekly COVID-19 testing and wear a face covering at the workplace. If an employer implements a mandatory vaccination policy, the policy must require vaccination of all employees except those who have a medical contraindication to vaccination, those for whom a vaccine must be delayed out of medical necessity, or those legally entitled to a reasonable accommodation because they have a disability or a sincerely held religious belief, practice, or observance conflicting with the vaccination requirement. Employees who are granted reasonable accommodations do not have to be permitted to work onsite while masked, as other accommodations such as remote work may exist, but employers can choose to allow them to do so. Employers must ensure each of their workers are fully vaccinated or tested for COVID-19 on at least a weekly basis, and those who aren’t vaccinated must wear face coverings while indoors.


Continue Reading “OSHA ETS Day” Is Finally Here: What Employers Need To Know Now About OSHA’s Vaccinate, or Test and Mask Rule

What’s scarier than Halloween? For Illinois employers, it could be that they now have only approximately two months to prepare for Illinois’ new limits on employee restrictive covenants. On August 13, 2021, Illinois Governor Pritzker signed Senate Bill (SB) 672 (now Public Act 102-0358) into law, imposing new conditions on employers’ use of noncompete agreements and nonsolicitation agreements in Illinois. The law goes into effect on January 1, 2022, with Illinois joining the tide of states (as well as the federal government–see our blog on President Biden’s recent Executive Order addressing restrictive covenants here) cracking down on employers’ use of restrictive covenants.

Here’s what Illinois employers need to know now.

Employers have a couple of months to prepare–and don’t need to look back at prior agreements

The Act is effective for any contract entered into after January 1, 2022, and does not apply retroactively. Therefore, employers will not be required to inventory and assess agreements signed prior to the Act’s effective date.

Noncompete agreements banned for employees making $75,000 per year or less

The Act does not ban noncompetes for all Illinois employees, but instead for those making $75,000 per year in earnings or less. This salary threshold will increase by $5,000 every five years until it reaches $90,000 in 2037.

“Earnings” includes what employers might expect: earned salary, earned bonuses, earned commissions, or any other form of compensation reported on an employee’s IRS Form W-2.


Continue Reading Don’t Get Spooked By the New Restrictions on Restrictive Covenants in Illinois

On October 6, 2021, Los Angeles Mayor Eric Garcetti signed into law one of the strictest vaccine mandates in the country (Ordinance No. 187219, the “Ordinance”), requiring proof of COVID-19 vaccination for patrons to enter a wide range of private establishments–more than just bars, wineries, or breweries. Employers who are covered by the Ordinance–which is similar to ordinances in New York, West Hollywood, and San Francisco–will have to quickly determine what changes they’ll need to make in order to meet the Ordinance’s requirements less than a month from now.

Here’s what businesses need to know now about the Ordinance.

Where does this matter?

The Ordinance applies to businesses operating within the city limits of Los Angeles, but not those in unincorporated areas of L.A. County.  North Hollywood?  Yes!  Santa Monica? No!


Continue Reading No Shoes, No Shirt, No Jab = No Entry: Proof of Full Vaccination Required in Los Angeles for Patrons to Enter Private Establishments

As companies call employees back to the physical workplace, more employers are electing to implement mandatory vaccination policies to keep employees safe amidst the spread of the COVID-19 Delta variant. In turn, some employees are seeking accommodations, asserting that disabilities or religious beliefs prevent them from being vaccinated. Employers should develop consistent standards for handling

Federal contractors and subcontractors in the US now have guidance on mandatory vaccines for employees, while private US employers with 100 or more employees are still waiting for the Occupational Safety and Health Administration (OSHA) to issue an Emergency Temporary Standard (ETS). On September 24, 2021, the Safer Federal Workforce Task Force–the task force created by President Biden to provide workplace guidance to heads of federal agencies during the COVID-19 pandemic–released its COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors (the Guidance). The Guidance primarily addresses vaccination requirements for employees of covered federal contractors, but it also imposes mask and physical distancing requirements for covered contractor worksites (including for employees, visitors and others) and requires contractors to designate a person (or persons) to coordinate COVID-19 workplace safety efforts at their workplaces.

Continue Reading No Fair! US Federal Contractors Get Guidance on Mandatory Vaccines While Other Private Employers Continue to Wait

On September 9, 2021, President Biden announced that he has directed the Department of Labor’s Occupational Safety and Health Administration (OSHA) to promulgate an emergency temporary standard requiring all US companies with 100 or more employees to ensure that their workers are either vaccinated against COVID-19 or tested  weekly before coming to work. In an

We are pleased to share a recent International Employment Lawyer article, “Are US Employers That Don’t Mandate Vaccines Now At Risk?” by Stephanie Priel, Robin Samuel, and Autumn Sharp. The article discusses risks companies that are not mandating COVID-19 vaccines may face, as well as steps those companies can take to meet their health and

Special thanks to Jeffrey Martino and Bradford Newman for their contributions to this post.

On July 9, 2021, President Biden issued his Executive Order on Promoting Competition in the American Economy (EO) (Fact Sheet here) signaling support for severe limitation of post-employment noncompete restrictions–a move likely to add fuel to the fire of states passing laws to limit the use of post-employment noncompetes. The EO Fact Sheet states that the banning or limiting of noncompetes will “[m]ake it easier” for employees to “change jobs[.]” Though employers may balk, given Biden’s campaign promises and support for passage of the Protecting the Right to Organize (PRO) Act (see our prior blog here), employers should not be surprised.

The EO encourages the Chair of the Federal Trade Commission (FTC) to exercise the FTC’s statutory rulemaking authority to “curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility.” It is uncertain whether that rulemaking will entirely ban or just limit noncompete agreements; focus on restricting noncompetes for all workers or just those considered more vulnerable (such as low wage earners); restrict nonsolicit agreements along with noncompetes; or preempt state law.

The EO also encourages the Attorney General and the Chair of the FTC to consider revising the October 2016 Antitrust Guidance for Human Resource Professionals “to better protect workers from wage collusion” by (as the Fact Sheet explains) strengthening antitrust guidance to prevent the suppression of wages or reduction of benefits through employer collaboration and sharing of wage and benefit information. As we explained in a recent client alert, a push to scrutinize competition issues in labor markets was already in play, tracing back to the 2016 Antitrust Guidance, in which the Department of Justice and FTC alerted companies that “naked” wage-fixing and no-poaching agreements could be prosecuted criminally, and that employers competing to hire or retain the same employees are “competitors” from an antitrust perspective.


Continue Reading Goodbye to Employer Protections? Biden Issues Executive Order Encouraging Curtailing of Post-employment Noncompetes

Special thanks to our summer associate Brianna Miller for her contributions to this post.

In Trinity Services Group, Inc. v. NLRB, No. 20-1014 (June 1, 2021), the US Court of Appeals for the DC Circuit recently rejected the National Labor Relations Board’s (NLRB) attempt to prohibit employers from expressing opinions the NLRB considers baseless. In reversing the NLRB, the Court held that the National Labor Relations Act (the “Act”) only prohibits employer speech containing a threat of reprisal or the promise of benefits, and that expressions which are merely “views, arguments or opinions” are not unlawful.

No threat of reprisal or promise of benefits means the statement–even if not based in fact–is not illegal

The case arose when an employee discovered a mix-up regarding the amount of her accrued paid leave. When she raised the issue with her supervisor, he pinned the blame on the union. The NLRB and the Court both found there was no objective basis for blaming the union rather than the employer for the mix-up.

The Court examined the provisions in Section 8(a)(1) of the NLRA, which proscribes certain speech. Section 8(a)(1) makes it unlawful for an employer to “interfere with, restrain or coerce employees” in the rights guaranteed by the Act. The Court also considered the provisions in Section 8(c) which guarantees parties freedom of speech, specifically that “[t]he expression of any views, argument, or opinion…shall not constitute an unfair labor practice.” The Court sought to reconcile the two provisions, and holding that only speech containing a threat of reprisal or promise of benefits is prohibited by the NLRA, while Section 8(c) protects “any” view, argument or opinion. The Court held the statement the NLRB found illegal contained neither a threat of reprisal or the promise of benefit and thus was not illegal. Undeterred by the plain meaning of the word “any,” the NLRB requested the Court to create an exception under Section 8(c) for statements which are “patently false.” The Court rejected that request as contrary to the plain language of the section.


Continue Reading NLRB’S Attempt at Fact Checking Rejected

Ordinarily, courts defer to the National Labor Relations Board’s (NLRB) factual findings and its remedial orders given the Board’s broad discretion when fashioning a remedy. However, in the D.C. Circuit’s recent decision in RAV Truck & Trailer Repairs Inc. v. NLRB, 997 F.3d 314 (D.C. Cir. 2021), the Court refused to do so.

Sometimes being too persuasive can have a downside, as Peter Robb, former General Counsel of the NLRB can attest. Robb had convinced the NLRB to find an owner had illegally closed his business and had further persuaded the NLRB to order it reopened. Contrary to common practice, the Court refused to rubber stamp the NLRB’s factual findings or to defer to the remedy, stating that the NLRB’s order “does not purport to explain how restoration is even factually possible.” Instead, the Court gave the NLRB a second chance at finding the necessary evidence in the now closed record.


Continue Reading DC Circuit Court Reins in NLRB: No “Rubber Stamp” of NLRB’s Findings and Remedy