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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.”

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.

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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 weekly negative test. The court’s ruling leaves in place Biden’s ability to require vaccines for most health care workers.

Click here to view the article.

This article was originally published in Corp!.

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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 13, 2022 (with Justices Breyer, Kagan and Sotomayor dissenting), 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 authority to impose the ETS. The majority held that while OSHA is empowered 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” and is 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 without clear congressional authorization.

The Court noted that OSHA likely has the authority to regulate occupation-specific risks of COVID-19, such as those faced by employees working in a research lab studying the virus or working in a particularly crowded or cramped environment, but noted that such authority should be exercised through “targeted regulations” instead of the “indiscriminate approach” taken by OSHA in the ETS. The Court declined to decide the equitable issues offered by both sides as justification for their positions (e.g., the costs of compliance with the ETS vs. the lives lost to disease if vaccination is not mandated), saying it was up to Congress to decide who is right on that point.

This ruling is no surprise, given the difficult day in court the ETS had during the Supreme Court’s January 7, 2022 oral argument for the ETS, when the Court’s conservative justices were vocally skeptical about the Biden Administration’s authority to require the millions of workers to get vaccinated or test weekly.

What to do?

What should employers do now?

  • Though the ETS has once again been blocked, the OSHA’s General Duty clause, Section 5(a)(1) still requires employers to provide workers with a safe and healthful workplace. Employers should ensure they are compliant with any state or local laws or guidance regarding COVID-19 protective measures that may apply to their employees or customers, clients and vendors to avoid claims that they have failed to provide a safe workplace.
  • Employers should also keep an eye out for new state and local legislation, orders or guidance in response to the Supreme Court’s halt of the OSHA ETS that may require employers to take additional protective measures.
  • Employers who have already begun to implement measures to meet the requirements of the ETS may still wish to move forward with those protective measures. While the Supreme Court’s ruling stays implementation of the ETS, it does not prevent employers from deciding to implement vaccine mandates in most jurisdictions. Employers should consult with counsel to ensure that continuing with implementation will not violate any applicable state or local laws.

Stay tuned for further developments, and contact your Baker McKenzie employment attorney for help with your employment needs.

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Illinois employers have a plethora of new laws to keep up with for 2022. From new Chicago and Cook County patron vaccination orders, to new laws limiting restrictive covenants, to pay data reporting (and more!), new Illinois laws are certain to make for a busy 2022 for Illinois employers. Here are 10 changes employers should know now as we get the ball rolling in 2022.

  1. Chicago and Cook County Vaccination Orders Require Some Employers to Check Vaccination Status of Employees and Require Testing for Unvaccinated Employees

Employers at restaurants, bars, gyms, and other establishments in Chicago and Cook County have already started scrambling to implement patron vaccination requirements–and requirements that they obtain the vaccination status of their employees and require weekly testing for employees who aren’t fully vaccinated. As of January 3, 2022, Mayor Lightfoot’s Public Health Order 2021-2 and the Cook County Department of Public Health’s Public Health Order 2021-11  took effect. Under the Orders, covered businesses (including establishments where food and beverages are served, gyms and fitness venues, and entertainment and recreation venues in areas where food and beverages are served) must:

  • Turn away patrons age 5 and over entering the indoor portion of an establishment unless they show a CDC COVID-19 Vaccination Record Card or an official immunization record (or a photo of the same) from the jurisdiction, state, or country where the vaccine was administered, reflecting the person’s name, vaccine brand, the date(s) administered and full vaccination status (two weeks after the second dose of the Pfizer or Moderna vaccine, or two weeks after a single dose of the Johnson & Johnson vaccine). There are certain narrow exceptions, such as allowing individuals inside for 10 minutes or less to carry out food or use the bathroom
  • Post signage informing patrons of the vaccination requirement
  • Develop and maintain a written record of the protocol for implementing and enforcing the Orders’ requirements

While covered businesses that are employers do not have to require employees to be vaccinated, they must:

  • determine the vaccination status of each employee by requiring each vaccinated employee to provide acceptable proof of vaccination status (including whether the employee is fully or partially vaccinated), and maintain a record of each employee’s vaccination status; and
  • require COVID-19 testing for employees who are not fully vaccinated. Employees who are not fully vaccinated and who report at least once every 7 days to a workplace where there are others present must be tested for COVID-19 at least once every 7 days and must provide documentation of the most recent COVID-19 test result to their employer no later than the 7thday following the date on which the employee last provided a test result.

Employers with 100 or more employees must also comply with the Occupational Safety and Health Administration Emergency Temporary Standard (OSHA ETS), at least for now. The US Supreme Court heard oral argument on whether to block the ETS at a special January 7 session, but until the Supreme Court issues its ruling, the ETS stands, requiring employers with at least 100 employees to implement and enforce a policy that mandates employees to be fully vaccinated or to submit to weekly COVID-19 testing and mask-wearing. For more on the Chicago and Cook County Orders and the OSHA ETS, see our blog here.

Continue Reading Illinois Employers: Ten Top Developments for 2022

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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:

Continue Reading Top 10 California Employment Law Updates for 2022

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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 employers with at least 100 employees to mandate vaccinations or masks and weekly testing for workers.

Click here to view the article.

This article was originally published in SHRM.

 

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We are pleased to share a recent Bloomberg Law article, “Gig Economy Companies Brace for Crucial Year as Challenges Mount,” with commentary from Mike Brewer. The article discusses the gig economy facing another year of upheaval as the Biden administration eyes actions to address worker rights, court battles continuing to play out across the country, and more states confronting ongoing disputes about drivers’ employment status.

Click here to view the article.

Originally featured in Bloomberg Law.

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Many thanks to Lothar Determann and Jonathan Tam for this post.

Some of your job applicants and employees in California may be alarmed if you tell them you sell their personal information. But you will have to say you sell their personal information if you disclose their personal information to third parties after January 1, 2022 without including certain data processing clauses in your contracts, as required by the California Consumer Privacy Act (CCPA). So we recommend reviewing these contracts to ensure they include the prescribed clauses if you wish to avoid being a “seller” of personal information.

You should also get ready to field data access, deletion, correction, portability and other requests from your employees and other personnel in California starting January 1, 2023. This will require implementing new protocols and training up your human resources and compliance teams. We also recommend tightening up your data retention and deletion protocols to limit the amount of information you have to review when handling data subject requests.

Do you use employee monitoring software or algorithms to help you evaluate job applicants? You should ensure that your use of these and similar tools address upcoming requirements regarding automated decision-making, risk assessments and the use of sensitive personal information. Note that the CCPA also currently requires employers to issue privacy notices to their California employees pursuant to a California Privacy Rights Act (CPRA) amendment that took effect on December 16, 2020.

There is an HR exception under the CCPA but it is not comprehensive and expires January 1, 2023. When the CCPA originally passed in 2018, it included a limited, temporary carve-out for personal information of job applicants, employees, independent contractors and other personnel, who only needed to receive a brief “notice at collection.” The CPRA extended the limited carve-out until January 1, 2023 and immediately expanded the list of disclosures that employers have to provide to employees and candidates at or before the time of collecting their personal information.[1] Such “notices at collection” must include details about the types of personal information collected, the purposes for which the information is collected, and how long the personal information is retained or the criteria for determining the same. The California Attorney General’s CCPA Regulations also require notices at collection to indicate whether the business sells California residents’ personal information and a notice of the their right to opt-out of sales if so, and a link to the business’s privacy policy.[2] You should begin to address these requirements immediately if you have not done so already.

Continue Reading Employers Must Prepare Now For New California Employee Privacy Rights

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It could be a hectic start to 2022 for some Chicago and Cook County employers. On January 3, 2022, Mayor Lightfoot’s Public Health Order 2021-2 and the Cook County Department of Public Health’s Public Health Order 2021-11  took effect, mandating proof of full vaccination (two weeks after the second dose of the Pfizer or Moderna vaccine, or two weeks after a single dose of the Johnson & Johnson vaccine) for patrons age five and older before they can enjoy certain public establishments.

Though the Orders are largely patron-focused (and employees are likely not “patrons” under the Orders), businesses in Chicago and Cook County will also need to comply with the Orders’ requirements that employers ensure employees are fully vaccinated or produce weekly negative COVID-19 tests.

Here’s what Chicago and Cook County employers need to know now.

Which establishments are covered?

  • Establishments where food or beverages are served, including but not limited to restaurants, bars, fast food establishments, coffee shops, tasting rooms, cafeterias, food courts, dining areas of grocery stores, breweries, wineries, distilleries, banquet halls, and hotel ballrooms
  • Gyms and fitness venues, including but not limited to gyms, recreation facilities, fitness centers, yoga, pilates, cycling, barre, and dance studios, hotel gyms, boxing and kickboxing gyms, fitness boot camps, and other facilities used for conducting indoor group fitness classes
  • Entertainment and recreation venues in areas where food or beverages are served, including but not limited to movie theaters, music and concert venues, live performance venues, adult entertainment venues, commercial event and party venues, sports arenas, performing arts theaters, bowling alleys, arcades, card rooms, family entertainment centers, play areas, pool and billiard halls, and other recreational game centers

What if you own a restaurant that only provides carry out? You won’t need to check the vaccination status of every patron coming in to grab food and go. Individuals entering an establishment for less than 10 minutes for the purpose of ordering and carrying out food, making a delivery, or using the bathroom are exempted. In addition, there are other exemptions, including for individuals who have previously received a medical or religious exemption as long as they provide the establishment proof of the exemption and a COVID-19 test administered by a medical professional within the last 72 hours prior to entering the establishment.

Continue Reading Chicago and Cook County Employers: Ring in the New Year with New COVID Requirements for Patrons and Employees

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On December 15, 2021, the New York City Council approved a bill that will require NYC employers with four or more employees to disclose in job postings – including those for promotion or transfer opportunities – the minimum and maximum salary offered for any position located within New York City. The Mayor has until January 14, 2022 (30 days) to approve or veto the bill. Alternatively, the bill will also go into effect if the Mayor does not affirmatively approve or deny the bill by January 14, 2022.

If the bill becomes law, it will:

  • Make it an unlawful discriminatory practice to not include in job listings the minimum and maximum salary offered for any position located within New York City.
  • Require employers to provide the minimum and maximum salary for any position located within New York City. Notably, the bill provides that this range may extend from the lowest to the highest salary that the employer in good faith believes at the time of the posting it would pay for the advertised job, promotion or transfer opportunity.
  • The bill will take effect 120 days after it becomes law.

The NYC Commission on Human Rights will be authorized to promulgate rules to implement the new bill. We will continue to monitor and report on developments.

Proliferation of Pay Transparency Laws

With the increased focus on equal pay for equal work, there is a nationwide trend of legislation imposing pay transparency requirements on employers. (We first reported on this trend last year.) These laws can include wage range disclosure obligations and can vary greatly in terms of where, when, how and to whom required disclosures must be made. Here are several notable laws to know:

  • California: requires employers to provide job applicants with the salary or hourly wage ranges for positions upon the applicant’s reasonable request, provided the applicant has completed an initial interview with the employer. (Effective January 1, 2018)
  • Colorado: requires employers disclose the pay, or pay range, of a position in the job posting itself. (Effective January 1, 2021)
  • Connecticut: requires disclosure of wage ranges even if the applicant or employee has not expressly requested such information. Specifically, Connecticut employers must provide prospective employees with wage range information before or at the time an offer of compensation is made, or at the applicant’s request, whichever occurs first, and must also provide employees with wage range information upon hire, upon a change in the employee’s position, or upon the employee’s first request for such information. (Effective October 1, 2021)
  • Maryland: requires that employers provide a job applicant with the wage range for the position for which the applicant applied upon request. (Effective October 1, 2020)
  • Rhode Island: requires an employer to provide a wage range for job positions. Upon an applicant’s request, an employer must provide the wage range for the open position. (Effective January 1, 2023)
  • Washington: requires employers provide the wage scale or salary range for the position upon a job applicant or employee’s request, provided the request is made after an initial offer of employment. (Effective July 28, 2019)