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On January 13, 2022, the Supreme Court issued two opinions in which the Court (1) blocked enforcement of the Occupational Safety and Health Administration’s COVID-19 Vaccine and Testing Emergency Temporary Standard (OSHA ETS) and (2) allowed enforcement of the Centers for Medicare & Medicaid Services (CMS) vaccine mandate for healthcare workers at Medicare and Medicaid covered facilities.

While the federal contractor vaccination mandate (Contractor Mandate) was not the subject of those cases, the Supreme Court’s decisions hint at its future–and it’s grim.

The Contractor Mandate is Currently Stayed

The Contractor Mandate is currently stayed by multiple district courts. And the 6th Circuit and the 11th Circuit have both declined to lift those stays. There are two more appeals pending in the 5th and 8th Circuits. Resolution of these cases will take months. In the meantime, the federal government cannot enforce the Contractor Mandate. Therefore, the likeliest option is that the Supreme Court simply lets the various Contractor Mandate cases run their course.

However, there’s always a chance the Supreme Court decides to intervene and hear appeals on the stays – as it did with the OSHA ETS and CMS vaccine mandate. If this happens, the Contractor Mandate is in trouble. Here’s why.

The OSHA Opinion (NFIB v. OSHA): OSHA Is Not Authorized to Regulate Public Health

First, an overview of the Supreme Court’s OSHA opinion. On January 13, 2022, the conservative majority of Supreme Court ruled that the parties challenging the ETS are likely to succeed on the merits of their claim that OSHA lacked statutory authority to impose the ETS. The majority held that while OSHA is empowered by statute to regulate workplace safety standards and occupational hazards, it has not been authorized to regulate “public health standards” and “the hazards of daily life” more broadly.

The Court acknowledged that the pandemic is a risk that occurs in many workplaces, but distinguished COVID-19 from the typical occupational hazard because it has spread everywhere “that people gather.” The Court characterized COVID-19 as a “kind of universal risk” that is no different from the “day-to-day dangers that all face from crime, air pollution or any number of communicable diseases.” The Court concluded that permitting OSHA to regulate the hazards of daily life simply because most Americans have jobs and face those same risks while working would significantly expand OSHA’s regulatory purview.

The Court said that “we expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.” After reviewing the statutory text, the Court found that the Occupational Safety and Health Act (OSH Act) does not clearly authorize OSHA to regulate public health through the ETS. The Court further noted that OSHA has “never before adopted a broad public health regulation…addressing a threat that is untethered…from the workplace.” Put simply, the Court decided that the ETS is not “what the agency was built for.”

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Continue Reading What Does the Supreme Court’s Stay of the OSHA ETS Mean for the Federal Contractor Vaccine Mandate? Don’t Count On It Surviving Judicial Review.

We are pleased to share a recent Corp! article, “Supreme Court Stops Biden’s Vaccine Mandate for Large Businesses,” with quotes from Robin Samuel. The U.S. Supreme Court stopped the Biden administration from imposing COVID-19 vaccine mandates, which called for businesses with 100 or more employees to require workers be vaccinated against COVID-19 or provide a…

The US Supreme Court just blocked the Occupational Safety and Health Administration’s COVID-19 Vaccine and Testing Emergency Temporary Standard (the OSHA ETS), reversing the 6th Circuit and granting an emergency stay of the ETS. The stay is temporary, but effectively spells the end of the ETS.

The Court’s Opinion

In its unsigned opinion issued January…

California has always kept employers on their toes when it comes to changing employment laws. This year is no exception. Here is our roundup of the top 10 developments California employers need to know. (And scroll down to see what’s on the horizon!)

  1. Minimum Wage Increases

Effective January 1, 2022, the California state minimum wage increased to $15.00 per hour ($14.00 per hour for employers with 25 or fewer employees). As a result, the minimum monthly salary for California exempt employees increased to $5,200, or $62,400 on an annual basis (which is two times the state minimum wage for full-time employment).

For computer software employees, their minimum hourly rate of pay increased to $50.00 and the minimum monthly salary increased to $8,679.16 ($104,149.81 annually).  And for licensed physicians and surgeons, the minimum hourly rate of pay increased to $91.07 .

Some counties and cities have imposed their own higher minimum wage rates, including Los Angeles, where a $15 minimum wage for all employers took effect in July 2021. The following local minimum wages took effect on January 1, 2022, regardless of employer size:

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Continue Reading Top 10 California Employment Law Updates for 2022

We are pleased to share a recent SHRM article, “What’s at Stake in the Supreme Court’s OSHA Vaccine-or-Testing Case,” with quotes from Robin Samuel. The U.S. Supreme Court will hear oral arguments January 7 on whether the Occupational Safety and Health Administration (OSHA) overstepped its authority when it issued an emergency temporary standard (ETS) requiring…

To mitigate against a 47% increase in the seven-day average COVID-19 case rate and a 14% increase in hospitalizations, Governor Gavin Newsom announced the return of an indoor mask mandate — which will apply irrespective of vaccine status in many locations — starting December 15 and lasting until January 15. California is implementing this change because of the rapid spread of the Omicron variant and increased travel and mixing of households during the holiday season.

So, just as things were starting to relax a bit in some parts of the state, the California Department of Public Health mask mandate once again tightens up face covering requirements for California employers. What do California employers need to know now?

Who & Where: A number of California counties — including Los Angeles, Ventura, Sacramento, and most of the San Francisco Bay Area – already have their own indoor mask mandates that were implemented in the summer and have no end dates. The new mandate does not supersede these existing orders, and thus will primarily change things for employers in San Diego County, Orange County, the Inland Empire, swaths of the Central Valley, and rural Northern California.

What & When: California employers must comply with the new order by requiring both employees and customers to wear masks in all indoor public settings, irrespective of vaccine status, from December 15, 2021 to January 15, 2021.

In addition to masking, the state will now require those without proof of vaccination attending events with more than 1,000 people to show proof of a negative COVID-19 test within one day. The previous guidelines required a test within 72 hours. The state will also recommend those who travel in or out of California get tested for COVID-19 within three to five days.

What else are employers asking?

Some employers have questioned whether the mandate covers office settings where workers are 100% vaccinated. The answer is: “it depends.”

On Tuesday afternoon, the CDPH clarified that the new indoor mask mandate only applies to local jurisdictions that do not already have an existing mask requirement in place as of December 13, 2021. Thus, for example, because San Francisco already has an indoor mask mandate that allows stable cohorts of 100% vaccinated people to forego masks in indoor settings like workspaces and gyms, the CDPH clarification enables employers in San Francisco to continue allowing their fully vaccinated stable cohorts to go without masks if they otherwise meet the requirements of the San Francisco health order. (In the Bay Area, Alameda, Contra Costa, Marin and Sonoma counties have adopted similar exemptions and thus the same analysis applies.) Note that some counties and cities with mask mandates do not permit vaccinated persons to forgo masks indoors, and in such locations, the local order applies, but vaccinated employees must still wear masks.

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Continue Reading Breaking News – Mask Up California! New Statewide Mandate Effective December 15

Special thanks to Melissa Allchin and Lothar Determann.

Our California Employer Update webinar is designed to ensure that California in-house counsel are up to speed on the top employment law developments of 2021 and are prepared for what’s on the horizon in 2022.

With our “quick hits” format, we provide a content-rich presentation complete…

We identified and mapped out our most relevant blog posts, articles and video chats to serve as a quick and handy roadmap to recovery and renewal for your company.

Our 2022 Employment & Compensation Resource Navigator provides US multinational companies organized links to Baker McKenzie’s most helpful, relevant thought leadership in one brief document. Arranged…

Special thanks to Maurice Bellan, Graham Cronogue and Sydney Hunemuller.

On September 9, 2021, President Biden issued Executive Order 14042 and related guidance, requiring most government contractors and subcontractors who contract with federal agencies to impose a COVID-19 vaccine mandate on their employees. In the intervening months, the scope and significance of Executive Order 14042 have continued to change. As we near the end of 2021, we expect these shifts to continue at least until January 2022, but likely well afterward. The following are some of the key areas where we have seen changes and expect to see more:

Timing: The enforcement deadline for vaccination has moved and may move again, especially in light of the multiple lawsuits surrounding its implementation, including the nationwide injunction which was issued December 8 and the potential congressional response (see infra) The original deadline for employee vaccination was December 8, 2021, but the current deadline for employees to be “fully vaccinated” has been moved to January 18, 2022.[1] This additional time provides a small amount of breathing room for corporations, but it remains to be seen whether the extension will be enough or if more time will be allowed.[2] Unless and until a new deadline is issued, it is wise to treat January 18 as the target date. However, compliance teams should be alert to any extensions that would allow for a smoother transition.

Agency-Specific Regulations: The scope of the mandates have increased, as certain agencies have applied the mandate to contractors that provide only products. The Executive Order and guidance carved out contractors who solely provided products. However, the guidance left the door open for agencies to impose their own wider-reaching requirements, regardless of the types of contracts involved. Agencies have already begun imposing these separate requirements, further complicating the landscape and obligating contractors to carefully scrutinize any new bids or contract modifications lest their particular agency has included the FAR clause requiring compliance.[3] Accordingly, the intake process needs to remain diligent to both avoid agreeing to this significant commitment and seize on potential opportunities to try to negotiate delayed implementations or other concessions. By the same token, companies should be alert for changes to agency requirements in case an agency retracts or refines its treatment of product providers.

Legal Challenges: It remains an open question as to which (if any) of the restrictions will actually become effective for product or service providers, as multiple litigants have challenged various aspects of the mandate and have received substantial (albeit temporary) relief. The following are some key litigation challenges:

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Continue Reading Update on COVID-19 Vaccine Mandates

With no rest for the weary, the new omicron coronavirus variant was detected in various pockets around the world over the holiday weekend, likely rattling employers and raising questions about returning to work. At the same time, there are new developments with respect to the federal government’s vaccine mandates.

Here’s what US employers need to…