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Employment & Labor Law Blog Legal updates, news, and commentary from the attorneys of Baker Sterchi Cowden & Rice LLC

2021: A Whirlwind Year for Labor & Employment Law

January 19, 2022 | Thomas Rice, David Eisenberg, Nicholas Ruble, Madeline Nagel and Elizabeth Miller

As in 2020, a major theme of the past year has been the Covid-19 pandemic, and the response of employers and governments, as the economy began to re-open and vaccines became widely available. But Covid-19 litigation was not the only activity in the labor and employment law arena in 2021.

FEDERAL VACCINE MANDATE LITIGATION

The saga of the OSHA “vaccine-or-testing” Emergency Temporary Standard (ETS) has been extensively documented on this Blog. However, as the new year dawns, the story is merely entering a new chapter.               

In the first week of 2022, the Supreme Court held oral argument on the two Covid-19 vaccine mandates and issued two unsurprising opinions on January 13th. First, the Court overturned the decision of the Sixth Circuit and reinstated the Fifth Circuit’s stay of the OSHA ETS, regarding vaccine mandates for private employers with 100 or more employees. Although the Court did not strike down the ETS, as a practical matter, the ETS in its current form is dead. OSHA has stated that it will not enforce the ETS as currently written (although OSHA has indicated that it will still hold employers to the OSH Act’s “general duty” clause in ensuring workplace safety). In its opinion, the Court stated forcefully that if it reviewed the ETS in the merits, the ETS would be struck down. Importantly, the concurring opinion written by Justice Gorsuch (and joined by Justices Thomas and Alito) relied upon the “major questions” doctrine. Justice Gorsuch described the doctrine as “closely related to the nondelegation doctrine.” The Biden administration is certainly not eager to see a robust application of the doctrine over the next three years.

Although the Court held that the petitioners were likely to succeed in overturning the ETS on the merits, a more tailored ETS, focusing on particular industries could pass muster. For example, work environments where many people are compressed in a small area may pose the necessary “grave danger” justifying OSHA intervention. You may read the full opinion here: National Federation of Independent Business v. OSHA

In the companion case concerning vaccine mandates for healthcare workers, the Court held that in certain environments, vaccine mandates are authorized. In Biden v. Missouri , Missouri, Kansas, and several other states challenged a Center for Medicare and Medicaid Services (CMS) rule requiring all facilities receiving Medicare or Medicaid funds to require vaccination of all employees. The Court wrote, in its per curiam opinion, that the Secretary of Health and Human Services was enabled by statute to place detailed conditions with which facilities must comply to receive Medicare or Medicaid funds. Those conditions have also included a requirement that healthcare providers maintain and enforce an “infection prevention and control program designed … to help prevent the development and transmission of communicable diseases and infections.”

Finding that the Secretary could enact the final interim rule, the Court vacated the injunction issued by the Eastern District of Missouri. For healthcare providers, the window for compliance with the CMS rule is narrow, and immediate action is required. Here are the major features of the CMS rule:

  • For the 25 petitioner states (except Texas), which include Missouri and Kansas, healthcare workers must receive their first vaccine dose by February 14, 2022, and be fully vaccinated by March 15.
  • For all other states, covered healthcare workers must receive their first vaccine dose by January 27, 2022, and be fully vaccinated by February 22.
  • Healthcare facilities are required to keep records of employees’ vaccination status.
  • Employers must develop policies to include medical and religious exemptions or accommodations.
  • The CMS rule does not apply to healthcare workers who provide exclusively telehealth services.
  • Employers face serious consequences for noncompliance, including hefty fines and revocation of eligibility to receive Medicare or Medicaid funds.

While litigation surrounding CMS’s authority to issue the vaccine mandate appears to be resolved for all practical purposes, there will be no shortage of litigation over its implementation. Baker Sterchi attorneys anticipate that the litigation areas to watch over the coming year include: denial of religious or medical accommodations (including requests which employers deem to be “insincere”) and federalism concerns in states enacting laws purporting to contravene the CMS Rule.

MISSOURI AND OTHER STATES SUE TO STOP FEDERAL CONTRACTOR VACCINE MANDATE

Missouri, et al. v. Biden, 4:21-cv-01300 (E.D. Mo. 2021)

On October 29, 2021, Missouri and nine other states filed suit against President Biden, the United States, and 13 other defendants seeking to stop Executive Order 14042, 86 Fed. Reg. 50,985 (Sept. 14, 2021) which required that all employees of federal contractors be vaccinated. The contractor mandate includes all full-time and part-time employees of any employer who has a contract with the federal government, including those employees who are not themselves working on or in connection with a federal contract. Unlike the OSHA ETS, EO 14042 applies to all employers with federal contracts, regardless of size. Employers must ensure that their employees are fully vaccinated by no later than December 8, 2021.

The States assert that they and their state agencies have contracts with the federal government and therefore would be required to ensure that their employees are vaccinated. Their lawsuit alleges that the mandate violates the federal Procurement Act, Procurement Policy Act, Administrative Procedures Act, and violates the States’ police powers, as well as the Tenth Amendment’s anti-commandeering doctrine, separation of powers, and various other constitutional provisions.         

On December 13, 2021, the Eighth Circuit Court of Appeals denied the States’ motion to stay enforcement of the Executive Order pending appeal. Like the litigation surrounding the OSHA ETS, this case seems destined to be decided by the Supreme Court.

NOTEWORTHY EIGHTH CIRCUIT DECISIONS

The Supreme Court Will Hear Eighth Circuit Case Involving Employment Arbitration

The Supreme Court granted certiorari in an Eighth Circuit case involving employment arbitration. In Morgan v. Sundance, Inc., (read the Opinion here) the District Court held that the employer had waived the right to compel arbitration where the case had been in litigation for more than eight months. A divided Eighth Circuit panel reversed the decision of the District Court, holding that the defendant had not waived its right to compel arbitration. According to the Eighth Circuit, the defendant had not slept on its rights, because much of the eight months in court had been devoted to trying to stay the case on procedural grounds, rather than litigating the merits. Therefore, the plaintiff was not prejudiced by the motion to compel arbitration. One circuit judge dissented, questioning why the defendant would wait eight months to even mention arbitration.

According to the Morgan majority, the nine federal circuit courts that have adopted the “prejudice” standard for finding waiver of arbitration rights, contradict the 2011 Supreme Court decision in AT&T Mobility LLC v. Concepcion which requires lower courts to evaluate arbitration agreements “on an equal footing with other contracts.” Adding the “prejudice” requirement to waiver of arbitration rights is an additional step that is not used in other contract cases. Therefore, the Supreme Court should weigh in on the appropriate standard in order to ensure consistency across all federal circuits.

The Supreme Court is likely to decide the case in fall 2022.

Eighth Circuit Clarifies that Attendance is Generally an Essential Job Function for ADA Purposes

Throughout its history interpreting the ADA, the EEOC has generally been reluctant to state unequivocally that regular attendance is an essential job function. Rather, in recent years, the EEOC has suggested that an extended leave of absence can constitute a reasonable accommodation in many instances.

Bucking that trend, the Eighth Circuit held in May that regular attendance is generally an essential job function for many jobs. In Evans v. Cooperative Response Center, Inc., No. 19-2483 (8th Cir. May 4, 2021), the plaintiff sued for violations of the ADA and FMLA, and retaliation. Evans suffered from reactive arthritis. Due to complications from her medical condition, Evans exhausted her FMLA leave, and when she could not report to work, she was assessed points under a “no fault” attendance policy and terminated. The Court evaluated the requirements of Evans’ position as well as the employer’s testimony, job descriptions, and policies regarding attendance. Because she was the only office assistant for the company, and the employer was not required to reassign existing workers to fill her job duties, attendance was essential. Under these circumstances, the Court found that intermittent FMLA leave and the ADA did not excuse her from the essential job requirement of regular and reliable attendance.

As always, ADA accommodation claims must be evaluated on a case-by-case basis. With the increasing practicability of remote work, not all jobs require in-person attendance, and for many, remote work may be a reasonable accommodation.             

Post #MeToo, a Hostile Work Environment Must Still Be “Severe and Pervasive”

In Lopez v. Whirlpool Corp., No. 19-2357 (8th Cir. Mar. 4, 2021), the Eighth Circuit affirmed the grant of summary judgment to an employer on claims of hostile work environment and retaliation. The district court found that the alleged conduct of a co-worker which included touching the employee on her back, invading her personal space, and blowing on her finger while calling her “baby” was not severe or pervasive enough to rise to a hostile work environment. The court also affirmed summary judgment on the retaliation claim, finding although the employee complained about feeling unqualified for an assigned task, she did not tie that complaint to sex discrimination or harassment.

Plaintiff Lopez worked at a Whirlpool manufacturing plant in Amana, Iowa, where she made refrigerators. Lopez claimed her co-worker Brian Penning, made multiple unwanted advances, touched her, and stared at her for long periods of time. To raise a triable fact on whether the complained of harassment affected a term, condition, or privilege of employment, the claim triggering conduct must be severe or pervasive enough to create an objectively hostile or abusive work environment. The court found that although her co-worker should be embarrassed and ashamed of his behavior towards Lopez, it did not meet the exacting standard that must be applied when determining an employer’s liability for a hostile work environment. The court further concluded that Lopez failed to provide evidence that Whirlpool knew or should have known about Penning’s conduct. Lopez admitted to not informing superiors of the unwanted touching, and she resigned four days after filing a formal complaint, which did not give Whirlpool reasonable time to address the complaint.

MISSOURI FEDERAL DISTRICT COURT CASES

Eastern District Finds McDonald’s and Franchisee were Joint Employers

In Johnson v. McDonald Corp., No. 4:20-cv-1867-RWS (E.D. Mo. June 3, 2021), the plaintiff worked at a McDonalds franchise located in St. Louis. Plaintiff claimed she was exposed to sexual harassment and assault during the few weeks she worked at the McDonalds. Plaintiff brought a Title VII suit against not only the franchisee, Tenaj, LLC, but also McDonald’s Corp. and McDonald’s USA, LLC, which both moved to dismiss arguing Plaintiff was not their “employee” under Title VII.

Applying the pleading standard required by Fed. R. Civ. P. 8, the Court determined that Plaintiff satisfied the standard when pleading that the Defendants were her employers under either a joint employer or agency theory. The Court reasoned that since the employee had only worked for the McDonald’s franchise for a short period of time, she may not have been aware of the entities that provided oversight of the franchise, or the individual role each entity played within the corporate structure. The court readily distinguished these facts from cases cited by Defendants, finding Plaintiff’s allegations of Defendants’ involvement in the day-to-day operations of the franchise was sufficient to raise a reasonable expectation that discovery will lead to relevant evidence of the claim.

The parties disagreed on which joint employer standard the Court should apply. The Defendants urged the Court to adopt the Baker test (Baker v. Stuart Broadcasting Co., 560 F.2d 389, 392 (8th Cir. 1977), which requires courts to consider: (1) interrelation of operations (2) common management (3) centralized control of labor relationship and (4) common ownership or financial control. Again, the Court determined that Plaintiff had pleaded sufficient facts to plausibly allege that McDonald’s USA and/or McDonald’s Corp. was a joint employer with the franchisee. Under the Twombley standard, the Plaintiff raises a reasonable expectation that one or more of these factors would become apparent during the course of discovery.

Although this decision is not binding outside of the Eastern District of Missouri, it is a sobering result that may attract potential plaintiffs to the district and require national franchisors to defend local employment disputes beyond the motion to dismiss stage.

NOTEWORTHY MISSOURI COURT OF APPEALS DECISIONS

Arbitration Clauses with “Unfettered” Modification Rights Are Unenforceable

In July, the Western District Court of Appeals affirmed that a delegation provision in an arbitration agreement must be supported by consideration. An “unfettered” right vested in management to modify its terms is an illusory promise, which is not adequate consideration to support a contract.

In Johnson v. Menard, Inc., WD 84138 (Mo. Ct. App. W.D. July 27, 2021), the court of appeals held that reference to AAA rules is “clear and unmistakable” evidence that the parties intended threshold questions of arbitrability to be determined by the arbitrator. However, whether an arbitration agreement is formed remains within the province of the courts. The question then was whether the delegation provision was supported by consideration. The Agreement stated “I UNDERSTAND THAT THIS AGREEMENT CANNOT BE MODIFIED EXCEPT BY THE PRESIDENT OF MENARD, INC.” The court held that vesting unilateral authority to modify the agreement without limit or notice meant it was “unfettered,” and made Menard’s promise illusory.

Because the delegation provision was not enforceable, the Court had authority to determine enforceability of the entire arbitration agreement. The Court held that unfettered modification provision meant entire agreement lacked consideration, and motion to compel arbitration was denied.

A Leave of Absence May be a Reasonable Accommodation under the MHRA

In Sherry v. City of Lee’s Summit, Missouri, WD 83635 (Mo. Ct. App. W.D. Mar. 9, 2021), following a trial for disability discrimination under the Missouri Human Rights Act, the City of Lee’s Summit moved for judgment notwithstanding the verdict. The City argued that Sherry did not prove he was disabled because the MHRA defines “disability” as “a physical or mental impairment which substantially limits one or more of a person's major life activities, being regarded as having such an impairment, or a record of having such an impairment, which with or without reasonable accommodation does not interfere with performing the job.” According to the City, since Sherry could not report to work for an extended period of time, his disability interfered with performing the essential functions of his job.

The City relied on Medley v. Valentine Radford Communications, Inc., 173 S.W.3d 315 (Mo. App. W.D. 2005) for the proposition that “an employee who cannot regularly come to work is not able to satisfy any functions of the job, let alone the essential ones.” However, the Court of Appeals held that Medley does not hold that a leave of absence is an unreasonable accommodation as a matter of law. In a footnote, the Court holds open the possibility that in some cases, “a factfinder may determine that a requested leave started out as a reasonable accommodation but becomes unreasonable as time wears on or as circumstances change.” But ultimately whether an employee meets the definition of disabled under the MHRA is a question of fact for the jury.

This case illustrates some of the difficulties employers may face in accommodating disabilities, particularly where an extended leave of absence may be a reasonable accommodation. Like the EEOC, the Western District is reluctant to state that regular attendance is always an essential job function. Disability accommodations must therefore be evaluated on a case-by-case basis.

NOTEWORTHY DISTRICT OF KANSAS CASES

District of Kansas Compels Arbitration where Employer’s Right to Modify is not “Unfettered”

A recent District of Kansas decision is worth revisiting, given how few arbitration cases are published in the District. In Braden v. Optum RX, Inc., the Court held that an arbitration provision which limited the employer’s right to modify terms was not one that granted “unfettered” discretion, and so it did not lack consideration. The provision at issue required the employer to provide at least 30 days’ notice to its employees of impending modifications, and only went into effect on January 1 of the following year. The employer’s promise to arbitrate was not “illusory.” More on this case can be found in a recent post on Baker Sterchi’s Kansas Employment Law Blog.

NEW LAWS, ORDINANCES, AND RULES

St. Louis “Ban the Box” Went into Effect on January 1, 2021

In 2020, the City of St. Louis enacted Ordinance No. 71074, a ban-the-box ordinance applicable to private employers with ten or more employees. The Ordinance went into effect on January 1, 2021. Under the ordinance, employers cannot inquire about an applicant’s criminal history until after the employer has interviewed the applicant and determined that the applicant is otherwise qualified for the position. Employers cannot base a hiring decision on the applicant’s criminal history unless the decision was based on all the information available, including the frequency, recency, and severity of the crime and the crime was reasonably related to or bears upon the duties and responsibilities of the position. However, the Ordinance is inapplicable where local, state, or federal law or regulation excludes applicants with certain criminal convictions. A similar ordinance was enacted in Kansas City in February 2018.

U.S. Department of Labor Issues Regulations to Benefit Tipped Employees

A new DOL regulation will likely mean that tipped employees will see larger paychecks in 2022. The Fair Labor Standards Act contains an exception to the standard minimum wage for tipped employees. Employers may take a “tip credit” and pay tipped employees as little as $2.13 per hour, as long as they earn at least the standard minimum wage of $7.25 (with tips included). In a final rule published by the DOL on October 29, 2021, the DOL revived the so-called “80/20 Rule” for tipped employees. The Trump administration had rescinded the rule in favor of a “reasonable time” standard.

Under the 80/20 Rule, tipped employees’ duties are divided into three categories: 1) tip-generating duties (e.g., taking orders, talking to customers, serving drinks, delivering food to tables); 2) directly-supporting duties (e.g., rolling silverware, clearing tables); and 3) non-tipped duties (e.g., cleaning bathrooms, washing dishes, taking out trash). Employers may only claim a tip credit for a tipped employee’s work where at least 80 percent of the employee’s time that week is spent on tip-generating duties and no more than 20 percent is spent on directly-supporting duties. If an employee’s time spent on directly-supporting duties exceeds 20 percent of the work week, all time above 20 percent must be paid at the minimum wage rate. Additionally, if directly-supporting work is performed for a continuous period of 30 minutes or more, the employer cannot claim the tip credit. Under the new rule, any time spent on non-tipped duties must be paid at the minimum wage rate.  

For example, assume a bartender works 40 hours in a week. If no more than 8 hours is spent on directly-supporting work, then the employer may take a tip credit for all hours worked. However, if she spends 12 hours on directly supporting work, then the minimum wage must be paid for the 4 hours in excess of 20%.

The Rule also prohibits employers from keeping any portion workers’ tips, regardless of whether the employer takes a tip credit. Employers face a fine of up to $1,100 for each instance the DOL finds that the employer retained employee tips. The Rule goes into effect on December 31, 2021, and litigation of the Rule appears likely.

NEW ILLINOIS EMPLOYMENT LAWS

As in 2020, the Illinois legislature was once again busy in the Employment Law arena. The Illinois Freedom to Work Act, (820 ILCS § 90). which limits employers’ use of noncompete and non-solicitation restrictive covenants for employees who are not highly compensated, takes effect on January 1, 2022. Specifically, the law:

  • Prohibits employers from entering into noncompete agreements with employees earning $75,000 or less, and from entering into non-solicitation agreements with employees earning $45,000.
  • Contains an escalator clause which provides that for noncompete agreements, the salary threshold amount will increase every five years by $5,000 until January 1, 2037, when the amount will equal $90,000. For non-solicitation agreements, the threshold amount will increase every five years by $2,500 until January 1, 2037, when the amount will equal $52,500.
  • Prohibits employers from entering into noncompete or non-solicitation agreements with employees who were terminated, furloughed, or laid off due to the Covid-19 pandemic, unless compensation is provided, in an amount equaling the employee’s base salary at the time of termination for the period of enforcement minus compensation earned from outside employment during that same period.

Illinois employers who utilize restrictive covenants in employment agreements should review those agreements, to ensure compliance with the new law.

Earlier in the year, the legislature amended the Illinois Human Rights Act to place new restrictions on employers’ ability to consider criminal conviction records when making employment decisions. The amendments allow employers to consider applicant and employee criminal conviction records in only two circumstances: (1) where a “substantial relationship exists between the conviction and the employment action being taken, and (2) where granting or continuing an individual’s employment would pose an unreasonable risk to safety or property of specific individuals, or to the public. Employers must consider the following factors in determining whether a conviction is disqualifying:

i.     The length of time since the conviction;

ii.    The number of convictions represented in the conviction record;

iii.   The severity of the conviction and its relationship to the safety of others;

iv.   The circumstances surrounding the conviction;

v.    The age of the employee at the time of conviction; and

vi.   Any evidence of rehabilitation.

Further, before an employer takes any adverse action based on a criminal conviction, it must engage in an interactive process with the applicant or employee, giving that individual notice of the potentially disqualifying conviction, providing a copy of any relevant criminal history report, and explaining the individual’s right to respond (within five days), including any challenge to the accuracy of the conviction record or evidence of mitigation. A final decision by the employer must be accompanied by a notice of the disqualifying conviction and reason for the decision, and notification of the person’s right to file a charge with the Illinois Department of Human Rights.

Note that these amendments do not alter and are in addition to the state’s Ban-the-Box law, which dictates when and how during the hiring process an employer my obtain criminal conviction information about an applicant.

A WILD 2021 CONCLUDES, WITH MORE IN STORE FOR 2022

2021 was a lively year for labor and employment law, taking center stage not only in the courts but also in the court of public opinion. In 2022, we can expect much of the same. Baker Sterchi attorneys will be following these developments with great attention and providing updates and analysis on this rapidly developing legal landscape.

OSHA Reacts to COVID-19 Pandemic and Issues Vaccine-or-Testing Mandate: What Employers Need to Know (Update)

December 21, 2021 | Nicholas Ruble and Elizabeth Miller

Update 12.21.2021:

On December 17, 2021, the Court of Appeals for the Sixth Circuit dissolved the stay issued by the Court of Appeals for the Fifth Circuit on November 12, 2021. All of the petitions challenging the ETS filed across the country had been consolidated in the Sixth Circuit for adjudication.

The three-member panel issued a 2-1 decision dissolving the Fifth Circuit’s stay. The standard for OSHA to issue its ETS is whether it is (1) necessary to protect employees from (2) a grave danger. The dissent provided a preview of what arguments to expect before the Supreme Court. The dissent pointed out that “necessary” can mean either “useful” or “indispensable,” and which definition is applied may well decide the case. Choosing the latter definition, the dissent found that OSHA had not proved that the vaccine-or-test mandate was “indispensable” to solving the COVID-19 pandemic. The dissent also questioned whether OSHA could establish that COVID-19 is a “grave” workplace danger, as opposed to a danger encountered in all aspects of life.

The majority countered that Congress could not have intended “necessary” to require “the most narrowly tailored” response from OSHA. The majority also credited OSHA’s findings that traditional workplaces are particularly ripe for transmission, placing workers at heightened risk while at work, and therefore have established a “grave danger” of COVID-19 transmission in the workplace. Judge Gibbons wrote a separate concurrence, noting that because OSHA has been tasked by Congress with making policy, the Court should not substitute its judgment for that of the agency.

Following issuance of the decision dissolving the stay, OSHA announced via a litigation update that it will not issue citations for noncompliance with any ETS requirement before January 10, 2022, except for the testing requirement. Enforcement of the testing requirements under the ETS will not begin until February 9, 2022, as long as the employer is “exercising reasonable, good faith efforts to come into compliance with the standard. For more information about the specific requirements, see our original blog post below.

No party has so far indicated that it will petition the Sixth Circuit for rehearing en banc. The deadline to do so is December 31. The challengers to the ETS may be eager for a battle before the high court, rather than to seek rehearing. The Supreme Court has already received numerous emergency applications to freeze the Sixth Circuit decision, and has asked for responses to the challengers’ requests by December 30. Justice Kavanaugh will handle referral of the case to the full Court for review. However, grant of the application is not a foregone conclusion, as the Court recently rejected a challenge to New York’s regulation requiring healthcare workers to receive a COVID-19 vaccine. 

In the event the Supreme Court accepts the case for review, there is no doubt interpretation of OSHA’s enabling act will be front and center. However, in an emergency application filed by a group of 27 state attorneys general (including Missouri and Kansas) assert that the ETS also violates the Tenth Amendment, the Commerce Clause, and the Non-Delegation Doctrine. Religious groups have likewise asserted that the religious exemptions are inadequate and violate the First Amendment and the Religious Freedom Restoration Act of 1993. The state attorneys general requested that the Supreme Court impose an emergency stay of the ETS pending review, or in the alternative, grant expedited review and strike down the ETS. 

Original Post 11.15.2021:

Since President Biden’s September announcement that employers with 100 or more employees must require vaccination or weekly testing of their employees, observers have waited anxiously for details from the Occupational Safety and Health Administration. The new Emergency Temporary Standard (ETS), published by OSHA in the Federal Register on November 5, 2021, contains three main components: full vaccination, or weekly testing of employees who are not “fully vaccinated” (with attendant recordkeeping requirements), and a face covering requirement. These components are discussed in detail below. As employers and practitioners begin to navigate the ETS requirements, they should keep in mind these important points:

►Starting December 5, 2021, unvaccinated employees must wear face coverings. 

►Starting January 4, 2022, companies must implement and enforce a written mandatory vaccine policy. Alternatively, a company may adopt a written policy that gives its employees a choice to either become fully vaccinated or undergo weekly testing and wear a face covering at work.

►An employer’s vaccine requirement is still subject to Title VII and the Americans with Disabilities Act. Employees with a sincerely held religious belief or practice contrary to vaccination or people who cannot be vaccinated due to a disability must be accommodated, unless accommodation would cause “undue hardship” on the employer. The EEOC has provided detailed guidance on what constitutes an “undue hardship” under the ADA. [Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the ADA]  

►A person is not considered “fully vaccinated” under the ETS until two weeks after they receive the final vaccine dose (or single dose of the Johnson & Johnson vaccine). Even employees who have received the full dosage will be subject to weekly testing requirements until two weeks has elapsed from the final dose. Employers should encourage workers who plan on getting vaccinated to do so now to avoid the weekly testing requirements.

►OSHA intends for the ETS to preempt all inconsistent state and local laws and regulations, including prohibitions on vaccine mandates and mask requirements.

►OSHA does not intend for the ETS to supplant collective bargaining agreements with terms that exceed OSHA requirements.

►On Friday, November 5th, a three-judge panel for the Fifth Circuit Court of Appeals issued an emergency stay of the ETS, citing “grave statutory and constitutional issues.” Petitioners moved for a permanent injunction and the Court is proceeding with an expedited briefing schedule. It is possible that the entire rule will be struck down by the Court, or that only parts of the rule will survive this permanent injunction stage. It is also unclear whether the stay applies in states outside of the Fifth Circuit (which covers only Texas, Louisiana, and Mississippi) and whether the Court will refer the case to the Multi-District Litigation Panel for consolidation with other cases filed around the country. Another U.S. Circuit Court of Appeals – the Seventh Circuit – has weighed in on COVID vaccination requirements, handing down in August a forcefully written opinion upholding Indiana University’s vaccination requirement for its new and returning students. We will continue to update this blog as these cases develop.


Counting Employees

How do you know if the ETS applies to your company? Consistent with the ETS, counting an “employee” should be interpreted very broadly. OSHA explains that the 100-employee threshold was determined based on administrative feasibility for the employer, rather than on likelihood of community spread, with smaller businesses being less able to easily absorb additional administrative costs.

Under the ETS, all employees must be counted, regardless of where they are located and across however many facilities. The ETS does not differentiate between part-time and full-time employees (independent contractors do not count toward the 100-employee threshold). While remote workers and employees who work exclusively outside are not subject to the vaccine or testing requirements, they do count towards the 100-employee threshold. For example:

►A company with 50 full-time and 50 part-time employees at one facility has 100 employees and is subject to the ETS.

►A company with 50 full-time employees at one facility and 50 full-time employees at another facility in a different city has 100 employees and is subject to the ETS.

►A company with 80 full-time employees at one facility and 20 temporary employees provided by a staffing agency has 80 employees and is not subject to the ETS.

►A company with 50 full-time in-person employees and 50 remote workers has 100 employees and is subject to the ETS even though the remote workers are not subject to vaccine or testing requirements, except when visiting an in-person workplace.     

►A franchisor company with 100 employees is subject to the ETS, but an individual franchisee of that company with only 25 employees is not subject to the ETS.

Vaccination Requirements

The most groundbreaking element of the ETS is the authority it gives employers with 100 employees or more to require each employee to reach “fully vaccinated” status, with few exceptions. 

a.       Vaccination Status

Employees who are not excluded from the ETS (that is, employees who are 100% remote or exclusively outdoors) must provide proof of vaccination to the employer. Proof of vaccination may be in the form of a state issued card – which may be scanned or photographed from a phone and e-mailed – a QR Code, Apple Wallet ID, or similar electronic vaccination card.

If the employee cannot provide proof of vaccination, the employee may provide a signed statement attesting to: (1) their vaccination status (either full or partial); (2) their vaccination card being lost or stolen, and the employee has not been able to secure a copy despite efforts to do so, (3) a description of the facility and the provider of the vaccination; and (4) a declaration, certification, or oath that the statement is true and accurate and acknowledging that providing false information may subject the employee to criminal penalties.

Employees who do not meet one of the proof of vaccination requirements must be treated as not fully vaccinated, and they are subject to weekly testing.

The employer is required to receive and process requests for medical or religious accommodation and provide accommodation as necessary.  

b.      Paid Leave

The ETS requires employers to provide at least four hours of paid sick leave during the workday for employees to get vaccinated. Employers must also provide a “reasonable time and paid sick leave” to recover from the side effects of the vaccine for each dose. OSHA estimates the time to recover from vaccine side effects may range from zero to 1.8 days, on average. Employers may require their employees to use banked sick time, but cannot require employees to go into the negative on sick time or use vacation or other banked PTO.

Absent a collective bargaining agreement, company policy, or state or local law to the contrary, nothing in the ETS requires employers to provide paid leave to employees who miss work due to being diagnosed with COVID-19.

Testing Requirement

Any employee who is not “fully vaccinated,” including those who decline vaccination or are exempt for medical or religious reasons, are subject to the ETS testing requirement. These employees must provide a negative COVID-19 test every seven days before they may enter the employer’s facility. The ETS requires that tests cannot be both self-administered and self-read by the employee. That is, an employee may not purchase an over-the-counter COVID-19 test, perform it on herself, and then provide the results to the employer. An employee may provide a result from a third party (such as a drive thru or community-testing clinic) including a health care provider. Alternatively, the employer may conduct an approved OTC COVID-19 test on-site prior to entry. An approved OTC rapid test kit may be used if a manager observes the employee open the approved kit, perform the test (usually a nasal swab), and the manager observes the results. Employees who do not provide proof of a negative test must be kept off the premises until a negative test is provided.

Employees who do not report to a physical workplace at least once every seven days do not need to be tested, but they must provide a negative COVID-19 test before entering the workplace. The test result must be within the previous seven days.

Employers are not required to pay for any costs associated with testing, subject to a policy, collective bargaining agreement, or other law. However, some states mandate that employers not pass on costs for medical requirements on to employees. In addition, the ETS has sparked debate about whether insurance companies will cover the cost of employer-mandated testing because the Families First Coronavirus Response Act requires health plans to pay for COVID-19 testing that is deemed “medically necessary.” Thus, insurance companies will likely consider ETS testing to be a “screening” that is not medically necessary and thereby avoid covering the cost for the ETS tests.   As a result, it is critical that employers and all non-fully-vaccinated employees understand whether an employee’s workplace is covered by a state law that forbids an employer from passing on this cost. Employers should also identify locations of low or no-cost COVID-19 testing sites, to ascertain how much out-of-pocket cost may be imposed on the employee.

Face Covering Requirement

While the vaccine or testing requirements have dominated the ETS headlines, the ETS also includes a face covering requirement which goes into effect on December 5, 2021. All non-fully-vaccinated employees must wear a face covering while indoors or in a vehicle, except: when the employee is alone in a room with floor to ceiling walls and a closed door; for a limited time while eating or drinking or for security checks; while wearing a respirator or other face mask (such as surgical mask); or when wearing a mask is infeasible or creates a greater hazard than wearing a mask.

Under the ETS, face coverings must include at least two layers of fabric, wrap around the ears or head with elastic, and fit snugly around the nose and mouth. Gaiters are not excluded by the ETS, but they must have at least two layers of fabric, fit snugly, and have no large gaps on the sides. The ETS neither requires nor prohibits an employer from paying for face coverings.

Recordkeeping Requirement

Employers must maintain a record of each employee’s vaccination status, a copy of each employee’s proof of vaccination, and/or copies of unvaccinated employees’ COVID-19 test results for the duration of the ETS. These records must be kept separate from personnel files and be treated as confidential medical records. The employer must also maintain a separate roster of all employee vaccination statuses.

While employers are not required to conduct investigations or take steps to verify medical information, any employer who knowingly accepts false medical information is subject to civil or criminal penalties under OSHA’s recordkeeping rules.

Enforcement

Generally, OSHA enforces its standards by assessing penalties. While states may operate their own Occupational Safety and Health Plans, those states are required to adopt maximum penalty levels that are at least as effective as the penalty levels of the Federal OSHA. OSHA’s maximum penalty amounts are:


Type of Violation

Penalty

Serious

Other-Than-Serious

Posting Requirements

$13,653 per violation

Failure to Abate


$13,653 per day beyond the abatement date

Willful or Repeated

$136,532 per violation


While there are pending efforts, including proposed legislation in some states, to increase the penalty maximums by more than 15%, even the current penalty levels will likely deter employers from attempts to sidestep the ETS, in light of the sheer volume of potential penalty exposure based on the number of non-fully-vaccinated employees who may be considered separate and repeated violations at any given company. As a practical matter, however, OSHA may lack the capacity to aggressively enforce the ETS given that the standard is expected to apply to more than 100,000 companies. Thus, OSHA will likely conserve its resources to enforce ETS-related penalties on larger, big-name, companies that may serve as cautionary tales in the news.

Final Takeaways

Time is of the essence. Employers and practitioners should take the following steps now, to ensure ETS compliance:

►provide employees with ample notice of the face covering mandate which goes into effect on December 5, 2021, and the January 4, 2022, vaccination deadline. Remember, employees who are not two weeks past their final vaccine dose are not “fully vaccinated” and are subject to weekly testing after January 4, 2022. For recipients of the Moderna and Pfizer vaccines, this means the first dose should be administered by November 23, 2021, to avoid any weekly testing;

►determine what will be included and administered as part of the employer’s testing program, which should be included in the employer’s written policy. When developing its testing program policy, an employer should consider whether testing will be provided at the employer’s premises, whether employees will be required to independently schedule tests, and whether employees may bring an OTC test with them to be administered at work;

►prepare a written policy that requires either vaccination or a weekly testing option, and distribute the policy to employees;

►determine how employees will be required to provide proof of vaccination or negative tests (e.g., an online portal, submit to HR or a specific manager, via e-mail);

►collect vaccination records from fully and partially vaccinated employees;

►consult with local health officials, hospitals, or clinics about hosting on-site vaccination events or conducting on-site COVID-19 testing; and

►prepare for receiving and processing religious and medical exemption requests and train front-line managers on how to identify and handle such requests. Exemption requests should be treated as requests for reasonable accommodation under Title VII or the Americans with Disabilities Act. The EEOC advises that an employer may deny a request for religious accommodation where the sincerity of the employees’ belief is questionable, as indicated by inconsistent past conduct, timing of the request or other factors. Employers considering denying religious requests must exercise extreme caution.

The ETS may be modified after the notice-and-comment period, or by legal challenge. Baker Sterchi attorneys will continue to monitor these developments, and will update this blog on a revolving basis with the most up-to-date information available.

Job Seekers Using Vaccine Mandates to Stand Out from the Crowd: Potential Pitfalls for Employers

November 4, 2021 | Nicholas Ruble

Whether due to a government mandate or a self-imposed work rule, every day more employers are requiring employees to be vaccinated against Covid-19.

Employers are eager to attract vaccinated employees to open positions. Employers have analyzed the costs they may save by hiring vaccinated workers. Vaccinated employees are less likely to contract Covid-19 or suffer serious health consequences from the virus, and they are therefore less likely to miss time from work. Employers will also save time and administrative costs associated with processing accommodation requests, paying for testing, or providing time off to employees awaiting tests or vaccines. Employers with government contracts are already required to ensure their workers are vaccinated. For employers with 100 or more employees, new OSHA rules will require their entire work force to be vaccinated against Covid-19 as well, by January 4th. (Alternatively, an employee may undergo weekly COVID testing.)

Between now and then, vaccinated employees will be in high demand. Some job applicants, sensing employers’ eagerness for vaccinated employees, have begun including their vaccine status on resumes, job applications, and social media in order to stand out from the crowd. However, regardless of how attractive vaccinated employees may be, consideration of a job applicant’s vaccine status in hiring decisions may create pitfalls for employers.

Before trying to cut through the red tape of employee vaccinations, employers should be aware that federal and state vaccine mandates require employers to carefully evaluate employee requests for medical or religious accommodations. When an applicant does not list his vaccine status, an employer cannot and should not try to guess why that is. It may be that the applicant has a disability or religious belief that prevents him from being vaccinated. Consideration of vaccine status in hiring decisions may run afoul of the Americans with Disabilities Act or religious protections under Title VII.

Disability Exemptions

The Americans with Disabilities Act prohibits discrimination against a qualified individual on the basis of disability, including “using qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities unless the standard, test or other selection criteria, as used by the covered entity, is shown to be job-related for the position in question and is consistent with business necessity.” 42 U.S.C. § 12112(b).

Persons with certain disabilities may not be able to be vaccinated. Thus, they would tend to be screened out or disfavored when employers consider vaccine status in hiring decisions. For example, two job applicants are considered for a position. One lists her vaccine status on her resume and the other does not. The hiring manager may want to hire the vaccinated worker because he does not want to run the risk of the “headache” of dealing with weekly testing or other accommodation. But if the applicant has not been vaccinated due to a disability, she may have a claim for disparate treatment.

Furthermore, disparate impact claims are also cognizable under the ADA. To state a claim, a plaintiff must show a “facially-neutral” policy or practice, a statistically significant disparity, and a causal connection. Consideration of applicants’ vaccine status probably does not facially discriminate against people with disabilities. However, giving a preference to people who have included their vaccine status could cause people with disabilities that prevent vaccination to be disfavored in the hiring process. If qualified individuals with a disability apply and are rejected at statistically significant rates because of consideration of vaccine status, they may be able to state a claim that the hiring process violates the ADA.

The ADA also contains specific provisions for when employers may inquire about medical information. Generally, medical information should not be obtained by the employer until after a conditional job offer is made. Then medical information may be obtained 1) to begin the reasonable accommodation interactive process; or 2) when medical information is obtained from all applicants. Therefore, employers should avoid obtaining or receiving medical information from applicants until after a conditional offer is made. 

Religious Exemptions

Government vaccine mandates also require accommodation of people whose sincerely held religious beliefs prevent vaccination. Title VII recognizes both disparate treatment and disparate impact claims. The EEOC has tended to interpret “sincerely held religious beliefs” broadly. Courts have become increasingly willing to evaluate whether a religious belief is sincerely held. However, for employers this is a minefield and should generally be avoided. Inquiries into whether a belief is “sincerely held” often devolve into claims of harassment.

Accommodations

An individual who has not been vaccinated, but is otherwise qualified for the position, can often be reasonably accommodated under the ADA or Title VII. Experience over the last two years has shown that unvaccinated employees can be reasonably accommodated. Reasonable accommodations may include weekly testing (as in the newly issued OSHA ETS), mask requirements, social distancing, installing plexiglass barriers, modified work schedules, or remote work.

Best Practices

Under the new OSHA standard and prior federal mandates for government contractors, by early 2022 most employees will be required to be vaccinated or submit weekly negative Covid-19 tests. But this does not relieve employers of the duty to accommodate disabilities or religious beliefs.

In order to avoid discrimination claims, employers should:

  • Include in job postings whether compliance with the OSHA ETS or other federal or state mandate is a job requirement, subject to applicable legal exemptions.
  • Include in job postings that applicants should not include their vaccination status on resumes or job applications and that vaccination status will not be considered in hiring decisions.
  • A blind application process – where photographs, demographic, and other personal data is redacted – is often the best way to remove bias from hiring decisions. If an employee offers vaccination information, it should be redacted.
  • Wait until after a conditional offer is made to inquire into accommodations for disabilities or religious beliefs.
  • Always store medical information in a separate file and treat it as confidential.
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About Employment & Labor Law Blog

Baker Sterchi's Employment & Labor Law Blog examines topics and developments of interest to employers, Human Resources professionals, and others with an interest in recent legal developments concerning the workplace. This blog is focused on Missouri, Illinois and Kansas law, and on major developments under federal law, and at the EEOC and NLRB.  Learn more about the editor, David M. Eisenberg, and our Employment & Labor  practice.

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