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.

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

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

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,

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

Special thanks to Brian Wydajewski, Narendra Acharya, Aimee Soodan, Tulsi Karamchandani, Scott McMillen, Angelique Poret-Kahn, Ginger Partee, John Foerster and Matthew Gorman.

Our two-part webinar series, co-hosted by the Association of Corporate Counsel – Chicago Chapter, is designed to ensure that Midwest in-house counsel are up to

This year New York employers have had to scramble to keep up with many new employment laws, and next year promises more of the same. The latest: New York City Mayor Bill de Blasio’s December 6 mandate that private sector employers require COVID-19 vaccines for their workers in NYC. If it survives expected legal challenges and takes effect December 27 (Happy Holidays!), the rule will be the broadest mandate of any state or large city in the US. From minimum wage increases, to regulations on the use of artificial intelligence tools in employee recruitment, to notice requirements for electronic employee monitoring, to New York’s fulsome response to COVID-19 through the HERO Act—private sector employers in New York have a laundry list of changes to implement and prepare for.

Below we highlight the 10 major employment law changes and updates that businesses need to know.

  1. New York City Vaccine Mandate To Hit All Private Employers December 27

By the end of the month, all in-person private sector New York City employees must have at least one dose of a COVID-19 vaccine, according to an announcement by Mayor de Blasio. The mandate, which will take the form of an order issued by the NYC Department of Health and Mental Hygiene, will apply to nearly 184,000 businesses and will not be limited to businesses in certain industries or based on company size. The mandate will most likely parallel the city worker mandate in that employers will, in certain instances, be permitted to make reasonable accommodations to mandatory vaccination policies for employees with legitimate religious or medical reasons, but will not permit any testing options in lieu of the vaccine. The mandate will not apply to fully remote employees or those who are alone at a worksite. The city has not yet announced whether employers will face inspections or fines if they fail to follow the mandate, but it intends to release implementation and enforcement guidelines by December 15, 2021.

The new mandate is the first of its kind on a local level while the federal vaccine rule for private employers with 100 or more employees remains on pause amid several legal challenges. The city mandate is also set to go into effect only days before the New York City mayoral transition, leaving future enforcement of the mandate uncertain.

 Employer Takeaways

  • Stay abreast of further city announcements concerning additional guidance on the vaccine mandate.
  • Operate under the assumption that the vaccine mandate will take effect December 27, 2021, and notify employees of the new mandate so unvaccinated employees have sufficient time to get vaccinated.
  • Implement procedures to verify applicable in-person employees vaccination status and prepare to collect vaccination records as confidential medical information.
  • Prepare to establish a mandatory vaccination policy and a process for employees to request exemptions, to the extent your business has not already done so.
  • Begin considering operational contingency plans if your business expects that a significant portion of the workforce will not get vaccinated.


Continue Reading Top 10 New York Employment Law Updates For 2021/2022

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:


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