A divided panel of the United States Court of Appeals for the Sixth Circuit lifted the stay on the Occupational Safety and Health Association’s Emergency Temporary Standard (“OSHA ETS”) late Friday night (December 17, 2021). The Sixth Circuit had previously been selected at random to hear the consolidated OSHA ETS litigation. As a result of the Sixth Circuit’s ruling, OSHA announced that it would exercise enforcement discretion with respect to the compliance dates of the OSHA ETS.  To provide employers with sufficient time to come into compliance: OSHA will not issue citations for noncompliance with any requirements of the OSHA ETS before January 10, 2022; and OSHA will not issue citations for noncompliance with testing requirements before February 9, 2022. These “extensions” are conditioned on an employer exercising reasonable, good faith efforts to come into compliance with the OSHA ETS. Ultimately, the Sixth Circuit found that the petitioners (Republican-led states, businesses, religious groups, and individuals) were unable to establish a likelihood of success on the merits. In doing so, the Sixth Circuit considered and analyzed a myriad of statutory and constitutional arguments. Two out of the three judges on the panel determined that the petitioners would be unlikely to be successful on their constitutional arguments that OSHA violated the commerce clause or the non-delegation doctrine. Under the Occupational Safety and Health Act, OSHA is required to show that health effects may constitute a “grave danger” in order to warrant an emergency temporary standard. The Sixth Circuit held that the determination as to what constitutes “grave danger” should be left, in the first instance, to the agency. The Sixth Circuit expressly disagreed with, and in effect overruled, the United States Court of Appeals for the Fifth Circuit by holding that OSHA was not required to make findings of exposure in all covered workplaces. The Sixth Circuit held that to require so would mean that no hazard could ever rise to the level of “grave danger.” Ultimately, the Sixth Circuit found that OSHA had shown that COVID-19 is a danger and relied on proper science in issuing the ETS. The Sixth Circuit further held that simply because OSHA did not issue the ETS at the beginning of the pandemic did not mean the agency did not consider COVID-19 an emergency worth addressing. The Sixth Circuit’s decision was appealed this morning to the Supreme Court; however, this appeal does not alter the decision unless and until the Supreme Court rules.  Polsinelli attorneys will continue to monitor further OSHA ETS developments.  In the meantime, employers should resume (or continue) preparations to comply with the ETS requirements. For a summary of the OSHA ETS and its requirements, visit here.

On December 14, 2021, the Equal Employment Opportunity Commission (“EEOC”) supplemented its guidance concerning COVID-19, the Americans with Disabilities Act (“ADA”), the Rehabilitation Act, and other Equal Employment Opportunity (“EEO”) Laws to confirm that COVID-19 can qualify as a disability under any of the three “disability” definitions in the ADA. COVID-19 can be—but is not always—an actual disability under the ADA if it causes a physical or mental impairment that substantially limits one or more major life activities. Similarly, a person with a history of COVID-19 may qualify as a person with a “record of” a disability under the ADA. Pre-existing conditions worsened by the virus may also qualify an employee for protection under the ADA. The EEOC cautioned that an individualized assessment is always necessary to determine whether the effects of a person’s COVID-19 substantially limit a major life activity, such as breathing, concentrating or interacting with others. However, the limitations from COVID-19 do not necessarily need to be consistent or long-term to be substantially limiting. For example, an individual who experiences ongoing intermittent headaches, dizziness and brain fog attributed to the virus may qualify as disabled. An individual diagnosed with COVID-19 who experiences heart palpitations, chest pain and shortness of breath attributable to the virus may also qualify as disabled. However, an employee diagnosed with COVID-19 who is asymptomatic or whose symptoms resolve within a few weeks with no further effects likely does not qualify as disabled, even if the employee is subject to isolation during the period of infectiousness. Employers should be aware that employees may be unlawfully “regarded as” an individual with a disability if they have COVID-19 or if the employer mistakenly believes they have COVID-19. The guidance provides that individuals must meet either the “actual” or “record of” definitions of disability to be eligible for a reasonable accommodation under the ADA. Individuals who only meet the “regarded as” definition are not entitled to receive reasonable accommodation. While employers can voluntarily provide accommodations beyond what is required by the ADA, it may be a violation of the ADA to prevent an employee diagnosed with COVID-19 from returning to the workplace once they are no longer infectious. The EEOC also reiterated the need for flexibility in accommodations, including schedule changes, physical modifications, telework or special equipment. The guidance confirms the importance for employers to carefully evaluate COVID-19’s effects on its workforce on a case-by-case basis.  If you have questions or would like more detailed information, Polsinelli’s Labor & Employment team is here to assist.

On November 18, 2021, President Biden issued Executive Order 14055 that requires successor contractors under federal government service contracts to offer employment to certain employees of the predecessor contractor whose employment would otherwise be terminated as a result of the predecessor’s loss of the contract.  Executive Order 14055 reinstates provisions of Executive Order 13495, which was issued under the Obama administration but revoked by President Trump in 2019. The Executive Order applies to contracts covered by the Service Contract Act (SCA).  A successor contractor who obtains an SCA-covered contract must provide the predecessor’s employees the option to continue working on the successor contract, before staffing the contract with other employees (commonly referred to as a “right of first refusal”).  Successor contractors must give predecessor employees a minimum of 10 business days to accept the offer of employment.  To ensure predecessor employees receive a right of first refusal, the predecessor contractor is required to provide a list of all SCA employees, working under the contract within the last month of the contract term, at least 10 business days prior to the end of the contract.  The list must also include the anniversary dates of the covered employees. The non-displacement requirement applies only to SCA-defined “service employees,” and therefore will generally encompass only employees who are non-exempt under the Fair Labor Standards Act.  In an interesting departure from the Obama-era executive order, however, Executive Order 14055 does not exclude managerial and supervisory employees from the right of first refusal.  The order does retain the Obama-era order’s exceptions for employees who perform work on both federal and commercial contracts and employees for whom the successor contractor reasonably believes, based on evidence of the employee’s past performance, there would be just cause for the employee’s termination. The Executive Order instructs the Department of Labor to issue regulations implementing the non-displacement requirement.  We expect that the forthcoming regulations will mirror the Department of Labor’s prior regulations implementing Executive Order 13495, which were the subject of some controversy upon their issuance.

On December 7, 2021, Judge R. Stan Baker of the U.S. District Court for the Southern District of Georgia enjoined the federal government from enforcing Executive Order 14042’s COVID-19 vaccination mandate for federal government contractors and subcontractors on a nationwide basis pending a further order from that court.  This ruling follows a November 30, 2021 order that similarly enjoined the contractor vaccine mandate in the states of Tennessee, Ohio, and Kentucky.  This is the latest in a growing number of  court decisions enjoining President Biden’s vaccine mandates, as the federal government has been barred, at least for now, from enforcing each of the three federal vaccination mandates applicable to private sector employers – the federal contractor mandate, the Center for Medicare & Medicaid Services (CMS) mandate, and the OSHA Emergency Temporary Standard. The Georgia litigation challenging the federal contractor vaccination mandate was brought by the States of Georgia, Alabama, Idaho, Kansas, South Carolina, Utah, and West Virginia, with the Associated Builders and Contractors (ABC) trade organization also intervening as a plaintiff.  In comparison to the earlier Kentucky ruling, the court based its award of injunctive relief on relatively narrow grounds, finding that the Federal Property and Administrative Services Act’s delegation of authority to the President to set federal procurement policy to achieve the objectives of “economy and efficiency” did not reach so far as to authorize the issuance of public health regulations.  Unlike the Kentucky ruling, the court did not address additional arguments asserting procedural and constitutional deficiencies in Executive Order 14042.  However, the court granted a broader scope of injunctive relief than the Kentucky injunction, finding that the nationwide scope of ABC’s membership required that enforcement of the mandate be enjoined nationwide in order to grant complete relief. We expect that the government will appeal the preliminary injunction to the U.S. Court of Appeals for the Eleventh Circuit.  Notably, on December 6, 2021, the Eleventh Circuit rejected the State of Florida’s challenge to the CMS vaccine mandate, finding that mandate to be within the government’s authority, though the predictive weight of that ruling could be limited because the two mandates were based on independent statutory grants of authority. Pending a contrary ruling from the Eleventh Circuit or the U.S. Supreme Court, the federal government is barred from enforcing Executive Order 14042’s vaccine mandate in any state or territory.  Given the potential that the injunction could be reversed, and the lack of clarity regarding what if any adjustments the federal government would make to the vaccine mandate in that event,  contractors may wish to continue their preparations in order to avoid being caught off-guard.  In addition, the court’s ruling does not prohibit federal contractors who wish to voluntarily implement their own vaccine requirement for their workforces from doing so, though the lack of an enforceable federal mandate means that such employers will need to carefully consider the effect of state laws which limit or prevent employers from requiring vaccination.

On December 7, 2021, Judge R. Stan Baker of the U.S. District Court for the Southern District of Georgia enjoined the federal government from enforcing Executive Order 14042’s COVID-19 vaccination mandate for federal government contractors and subcontractors on a nationwide basis pending a further order from that court.  This ruling follows a November 30, 2021 order that similarly enjoined the contractor vaccine mandate in the states of Tennessee, Ohio, and Kentucky.  This is the latest in a growing number of  court decisions enjoining President Biden’s vaccine mandates, as the federal government has been barred, at least for now, from enforcing each of the three federal vaccination mandates applicable to private sector employers – the federal contractor mandate, the Center for Medicare & Medicaid Services (CMS) mandate, and the OSHA Emergency Temporary Standard. The Georgia litigation challenging the federal contractor vaccination mandate was brought by the States of Georgia, Alabama, Idaho, Kansas, South Carolina, Utah, and West Virginia, with the Associated Builders and Contractors (ABC) trade organization also intervening as a plaintiff.  In comparison to the earlier Kentucky ruling, the court based its award of injunctive relief on relatively narrow grounds, finding that the Federal Property and Administrative Services Act’s delegation of authority to the President to set federal procurement policy to achieve the objectives of “economy and efficiency” did not reach so far as to authorize the issuance of public health regulations.  Unlike the Kentucky ruling, the court did not address additional arguments asserting procedural and constitutional deficiencies in Executive Order 14042.  However, the court granted a broader scope of injunctive relief than the Kentucky injunction, finding that the nationwide scope of ABC’s membership required that enforcement of the mandate be enjoined nationwide in order to grant complete relief. We expect that the government will appeal the preliminary injunction to the U.S. Court of Appeals for the Eleventh Circuit.  Notably, on December 6, 2021, the Eleventh Circuit rejected the State of Florida’s challenge to the CMS vaccine mandate, finding that mandate to be within the government’s authority, though the predictive weight of that ruling could be limited because the two mandates were based on independent statutory grants of authority. Pending a contrary ruling from the Eleventh Circuit or the U.S. Supreme Court, the federal government is barred from enforcing Executive Order 14042’s vaccine mandate in any state or territory.  Given the potential that the injunction could be reversed, and the lack of clarity regarding what if any adjustments the federal government would make to the vaccine mandate in that event,  contractors may wish to continue their preparations in order to avoid being caught off-guard.  In addition, the court’s ruling does not prohibit federal contractors who wish to voluntarily implement their own vaccine requirement for their workforces from doing so, though the lack of an enforceable federal mandate means that such employers will need to carefully consider the effect of state laws which limit or prevent employers from requiring vaccination.

On December 2, 2021, OFCCP announced that its Affirmative Action Program Verification Interface (also referred to as the Contractor Portal) is now operative. Through the Contractor Portal, federal government supply and service contractors and subcontractors will be required to certify on an annual basis that they have developed and maintained affirmative action plans (AAP) for each of their establishments or functional units. Construction contractors are not required to certify compliance or register for the Contractor Portal. Beginning February 1, 2022, contractors will be able to register their companies through the Portal. The AAP certification period will then begin on March 31, 2022, and contractors and subcontractors must complete the certification by June 30, 2022.  OFCCP has issued FAQs on the Portal and will also be issuing a user guide in the upcoming months to provide contractors with additional information regarding registration and the certification process. The certification requirement applies to both establishment-based and functional affirmative action plans (FAAPs). Although it is not clear whether a contractor’s failure to make the required certification will flag the contractor to undergo an OFCCP compliance evaluation, the certification requirement appears to raise the stakes for contractors and subcontractors to ensure their compliance with the affirmative action plan requirement.  Some companies doing business with the federal government or with a government contractor may not realize that they have a federal government contract or subcontract that is subject to OFCCP’s equal opportunity clause and the AAP requirement.  Notably, OFCCP’s regulations provide that the equal opportunity clause is deemed to be included in all covered contracts or subcontracts, regardless of whether the clause is explicitly incorporated in the actual contract document.  Accordingly, contractors potentially subject to the AAP requirement (generally, those with federal contracts or subcontracts exceeding $50,000 in value and 50 or more employees) should carefully consider whether they are required to implement an AAP, and do so, ahead of the upcoming certification requirement.

On December 2, 2021, OFCCP announced that its Affirmative Action Program Verification Interface (also referred to as the Contractor Portal) is now operative. Through the Contractor Portal, federal government supply and service contractors and subcontractors will be required to certify on an annual basis that they have developed and maintained affirmative action plans (AAP) for each of their establishments or functional units. Construction contractors are not required to certify compliance or register for the Contractor Portal. Beginning February 1, 2022, contractors will be able to register their companies through the Portal. The AAP certification period will then begin on March 31, 2022, and contractors and subcontractors must complete the certification by June 30, 2022.  OFCCP has issued FAQs on the Portal and will also be issuing a user guide in the upcoming months to provide contractors with additional information regarding registration and the certification process. The certification requirement applies to both establishment-based and functional affirmative action plans (FAApPs). Although it is not clear whether a contractor’s failure to make the required certification will flag the contractor to undergo an OFCCP compliance evaluation, the certification requirement appears to raise the stakes for contractors and subcontractors to ensure their compliance with the affirmative action plan requirement.  Some companies doing business with the federal government or with a government contractor may not realize that they have a federal government contract or subcontract that is subject to OFCCP’s equal opportunity clause and the AAP requirement.  Notably, OFCCP’s regulations provide that the equal opportunity clause is deemed to be included in all covered contracts or subcontracts, regardless of whether the clause is explicitly incorporated in the actual contract document.  Accordingly, contractors potentially subject to the AAP requirement (generally, those with federal contracts or subcontracts exceeding $50,000 in value and 50 or more employees) should carefully consider whether they are required to implement an AAP, and do so, ahead of the upcoming certification requirement.

On November 30, 2021, the U.S. District Court for the Eastern District of Kentucky threw a wrench into the federal government’s efforts to enforce Executive Order 14042’s COVID-19 vaccination mandate against federal government contractors by issuing a preliminary injunction barring the government from enforcing the mandate in Tennessee, Ohio, and Kentucky.  The court’s order is the latest development that government contractors must address in attempting to comply with Executive Order 14042 while minimizing litigation risks from employees who are unable or unwilling to become fully vaccinated. The Eastern District of Kentucky litigation challenging the federal contractor vaccination mandate was brought by the States of Tennessee, Ohio, and Kentucky, as well as two individual plaintiffs.  In granting the preliminary injunction requested by the States, the court relied upon three grounds to find that the Biden Administration exceeded its authority in issuing Executive Order 14042.  First, the court determined that Congress’s grant of authority under the Federal Property and Administrative Services Act for the President to promote “economy and efficiency in federal contracting” did not authorize the imposition of a vaccination mandate on federal government contractors, because the mandate is not closely tied to the statute’s objectives.  The court noted that if FPASA did provide the President the authority to mandate vaccination, such a grant of authority would violate the constitutional nondelegation principle.  Second, the court ruled that the vaccination mandate violated the Competition in Contracting Act, as contractors who “represent the best value to the government,” but do not follow the vaccine mandate, would be barred from competing for government contracts.  Finally, the court found the vaccine mandate to be a federal intrusion on powers reserved to the States, violating the Tenth Amendment of the Constitution. The court’s ruling applies only to prohibit enforcement of the vaccination mandate against contractors and subcontractors on covered contracts in Tennessee, Ohio, and Kentucky, rather than nationwide.  We expect that the government will appeal the preliminary injunction.  The appeal will be heard by the U.S. Court of Appeals for the Sixth Circuit, which is also hearing the challenges to OSHA’s Emergency Temporary Standard requiring COVID-19 vaccination or testing for employers with more than 100 employees. The Safer Federal Workforce Task Force guidance implementing Executive Order 14042’s mandate did not require that covered employees become fully vaccinated until January 18, 2022, which means that the employee receive the final shot in the applicable vaccination series by January 4, 2022.  Unless and until the mandate is enjoined in other jurisdictions, federal contractors outside of Tennessee, Ohio, and Kentucky should move forward in ensuring that their relevant employees are fully vaccinated by the deadline, as an employee receiving the Moderna or Pfizer vaccine will need to receive the first shot in early December to stay on track to become fully vaccinated by January 18, 2022.  Contractors in the three states covered by the injunction should also continue preparations in order to avoid being caught off-guard if the Eastern District of Kentucky’s injunction is stayed or reversed.

Today, the Sixth Circuit Court of Appeals, based out of Cincinnati, was selected via lottery by the Judicial Panel on Multidistrict Litigation to hear legal challenges to the OSHA ETS. The OSHA ETS was formally issued on November 5, 2021. For more information on the OSHA ETS, check out Polsinelli’s blog posts discussing its impacts on employers with more than 100 employees here. A three-judge panel from the Sixth Circuit will now be randomly assigned to hear the legal challenges to the OSHA ETS. A majority of the judges currently presiding in the Sixth Circuit were appointed by Republican presidents. It is almost assured that the Biden Administration and OSHA will ask the Sixth Circuit Panel to review and repeal the Fifth Circuit Court of Appeals’ stay of the OSHA ETS. In a decision this past Friday, November 12, 2021, the Fifth Circuit reaffirmed its earlier order halting enforcement of the OSHA ETS, noting that the OSHA ETS “threatens to substantially burden the liberty interests of reluctant individual recipients to put a choice between their job(s) and their jab(s).” Just yesterday, in compliance with the Fifth Circuit’s order halting enforcement of the ETS, OSHA issued a statement that it was suspending “activities related to the implementation and enforcement of the ETS” but provided that OSHA “remains confident in its authority to protect workers in emergencies…” and that it is suspending its activities “pending future developments in the litigation.” Polsinelli attorneys will continue to monitor and report on legal challenges to the OSHA ETS.  In the meantime, your Polsinelli attorney can assist with questions you have regarding current vaccine mandates.

On November 16, 2021, the Department of Labor published a Final Rule implementing Executive Order 14026 and raising the federal contractor minimum wage to $15 per hour under most federal government contracts entered into after January 30, 2022.  The Final Rule also increases the minimum wage for employees who regularly receive tips to $10.50 per hour and will eliminate the ability of contractors to take a tip credit effective January 30, 2024. Beginning January 30, 2022, federal agencies will be required to include a contract clause imposing the increased minimum wage in the following types of government contracts: Procurement contracts for construction covered by the Davis-Bacon Act; Contracts for services covered by the Service Contract Act; Concessions contracts; Contracts with the federal government in connection with federal property or lands and related to offering services for federal employees, their dependents, or the general public. Contractors subject to the clause must flow the minimum wage requirement down to subcontractors who work on the covered contract.  The clause will not be included in federal grants, certain contracts with Indian Tribes, contracts excluded from the Davis-Bacon Act or Service Contract Act, contracts performed outside the United States, and contracts for manufacturing or furnishing materials, supplies, articles, or equipment. As in the Notice of Proposed Rulemaking preceding the Final Rule, employees are entitled to receive the increased minimum wage if they perform services “on or in connection with” a federal contract.  Employees perform services “on” a federal contract when they directly perform the services called for by the contract. Employees perform services “in connection with” a federal contract when they perform services that are not required by the contract, but are necessary to the performance of the contract’s services, such as security, maintenance, or janitorial work at facilities that perform federal contract work. Workers who only perform “in connection with” a federal contract are not subject to the minimum wage requirement if they perform less than 20% of their work time on performing services “in connection with” the contract. As in the Notice of Proposed Rulemaking, the final rule does not create a private right of action for employees to sue contractors for unpaid wages.  However, employees can submit complaints to the Department of Labor, which may result in sanctions for failing to pay the increased minimum wage. These sanctions can include withholding of contract payments from the prime contractor, the termination of contracts, and debarment from federal contracting.

On November 18, 2021, District of Columbia Mayor Muriel Bowser signed the “COVID Vaccination Leave Emergency Amendment Act of 2021” (the “Act”). The Act applies to nearly all private employers with employees in the District. The Act (1) establishes new paid COVID-19 vaccine leave requirements and (2) extends the public health emergency leave available under the DC Family Medical Leave Act (“DCFMLA”), which expired November 5, 2021. The Act will remain in effect until February 16, 2022. New Paid COVID-19 Vaccine Leave The Act requires employers provide up to two (2) hours of paid leave for employees to obtain each dose of a COVID-19 vaccine, including boosters. This leave is also available for employees to obtain a COVID-19 vaccine for their child. Additionally, the Act requires employers provide up to eight (8) hours of paid vaccine recovery leave, per dose and during the 24 hour period following the vaccine dose, for employees to recover from the vaccine or to care for their child recovering from the vaccine. This leave is in addition to the two (2) hours of paid leave for employees to obtain vaccinations. Extension of Public Health Emergency Leave The Act also extends D.C.’s declared public health emergency for COVID-19. Under the previously-enacted Coronavirus Support Temporary Amendment Act of 2021, employees were entitled to an additional 16 weeks of unpaid public health emergency leave for COVID-19 related-reasons. However, the public health emergency declaration expired on November 5, 2021. The Act extends the expanded DCFMLA COVID-19 leave until February 16, 2022. Reasons an employee may use the unpaid public health emergency leave include: (1) to care for themselves or a family member after testing positive for COVID-19, (2) the employee is required to quarantine/isolate or care for a family member who is required to quarantine/isolate, or (3) the employee must care for a child whose school/place of care is closed due to COVID-19. Compliance Assistance Below are answers to questions employers may have regarding compliance with the new paid vaccine leave requirements of the Act: 1. May employers require employees to provide documentation supporting their need for paid vaccine leave? Answer: Yes. Employers can require employees, after they return from their leave, to provide their vaccine record or documentation showing the date and time of their (or their child’s) vaccination. 2. Is there a limit to how much paid COVID-19 vaccine leave an employee can use? Answer: Yes. Employees are only entitled to up to 48 hours of paid vaccine leave (including vaccine recovery leave) in a year. 3. Can employers require employees to provide notice prior to taking leave? Answer: Yes. An employer can require employees provide up to 48 hours’ notice prior to taking any vaccine leave. However, in the case of an emergency, employees need only to provide reasonable notice. 4. If employees are subject to a collective bargaining agreement, can they waive the paid vaccine leave requirements of the Act? Answer: No. The Act explicitly prohibits waiver of the paid vaccine leave requirements through collective bargaining agreements. 5. Are employers required to give new employees paid vaccine leave immediately after hire? Answer: No. Employees are not entitled to paid vaccine leave until they have been employed for 15 days. 6. Do these new leave laws expand the amount of leave available to employees under DC and federal law? Answer: Yes. DC’s new vaccine leave, public health emergency leave, and expanded DC FMLA COVID-19 leave are in addition to leave available under DC FMLA, DC Safe and Sick Leave law, and the federal FMLA. For example, under the DC FMLA, employees are now entitled to up to 16 weeks of family leave, 16 weeks of medical leave, and 16 weeks of COVID-19 leave, in addition to the 12 weeks available under federal FMLA. If you have any additional questions about how the Act, or any other related DC COVID-19 leave laws, affect your business, contact your Polsinelli attorney.

Effective January 26, 2022, New York will greatly expand whistleblower protections provided to employees and independent contractors, creating new compliance challenges and avenues of liability for employers. Senate Bill S4394A (the “Amendment”), recently signed into law by Governor Hochul on October 28, 2021, amends New York’s whistleblower protection law (codified at Section 740 of New York’s Labor Law) in four principal ways: ·       Expanding the definition of protected activity under the law; ·       Expanding the scope of individuals entitled to whistleblower protection; ·       Expanding the definition of adverse actions under the law; and ·       Watering down the requirement that whistleblowers notify their employer of the challenged conduct prior to reporting it to law enforcement or other government bodies. Most importantly, the amendment expands the scope of protected activity under the whistleblower law.  Previously, a whistleblower was protected only when disclosing employer conduct that violated a law, rule, or regulation and created a substantial and specific danger to public health or safety or constituted health care fraud.  Now, whistleblowers will also have protection when reporting employer conduct that the whistleblower reasonably believes violates a law, rule, or regulation or is a substantial and specific damage to public health or safety.  What constitutes “reasonable belief” will likely be determined by future case law, but will likely include both objective and subjective analyses as is the case under other whistleblower protection laws (similar to Section 806 of the Sarbanes-Oxley Act). The law also expands the universe of individuals who may be entitled to whistleblower protection.  Previously, New York’s whistleblower law protected only employees.  The new amendment clarifies that the whistleblower law also protects former employees and expands protection to independent contractors.  Further, the amendment  broadens the definition of  “retaliatory action” under the law to include (1) actions or threats to a former employee’s current or future employment; and (2) threats to contact U.S. immigration authorities on an employee or an employee’s family member. Finally, the new amendment allows employees or independent contractors to, in some cases, obtain protection without reporting the alleged illegality or threat to health and safety to the employer.  Whereas previously employees were required to report violations of law to the employer to obtain protection, now they merely need to make “a good faith effort” to do so.  In addition, employer notification is excused entirely if: (1) there is an imminent and serious danger to public health and safety, (2) the employee reasonably believes that reporting would result in the destruction of evidence or concealment of the conduct, (3) the conduct could reasonably be expected to endanger the health of a minor, (4) the employee reasonably believes that reporting would result in physical harm to the employee or another person, or (5) the employee reasonably believes their supervisor is aware of the conduct and will not correct it. Employers should be aware that the amendment imposes a posting requirement for employers. Employers must post a notice of employee rights in a well-lit place that is “customarily frequented by employees and applicants.”  The New York Department of Labor will likely publish a model notice prior to the effective date of January 26, 2022. The new whistleblower protection under New York state law joins the ever-proliferating layers of employee whistleblower protections under state and federal law.  Employers who receive complaints about illegality or health and safety issues will need to carefully document both the receipt of the complaint itself and the employer’s response.  Employers would be well-advised to consult counsel before taking an adverse employment action following a whistleblower’s report. If you have questions regarding these upcoming changes to New York law, contact your Polsinelli attorney.

On November 9, 2021, the Office of Federal Contract Compliance Programs (OFCCP) published a proposed rule rescinding its December 2020 Final Rule broadening the religious exemption from Executive Order 11246’s nondiscrimination requirements for federal contractors, which went into effect on January 8, 2021.  The rescission of the Trump-era religious exemption regulation was not unexpected, as OFCCP previously announced its intention to rescind the rule in February 2021.  The proposed rule will reinstate the pre-2020 language of OFCCP’s religious exemption regulation. The current OFCCP religious exemption regulations, enacted in the waning days of the Trump administration, widen the availability of the religious exemption to federal contractors, especially those who operate on a for-profit basis, and also broadly construe the protection offered to religious contractors. The current regulations also include a rule of construction requiring OFCCP to enforce contractor non-discrimination obligations in a manner that provides the broadest protection of religious activity.  In the new proposed rule, OFCCP proposes eliminating the Trump-era regulations in their entirety and instead aligning OFCCP’s religious exemption with the existing body of case law construing Title VII’s religious exemption. The return to OFCCP’s pre-Trump religious exemption based on Title VII precedents will certainly reduce the availability of the religious exemption to federal contractors as a defense against discrimination claims asserted by OFCCP.  That said, the practical impact of the change will likely be minimal, as federal contractor employers who might have been protected by the broader religious exemption would nonetheless be subject to the Title VII standard in any related private litigation brought by the employees alleged to have been discriminated against.  The DOL will accept public comments on the proposed rule for 30 days, until December 9, 2021.

On November 10, 2021, the Biden Administration announced another change to the deadline for federal contractors to become fully vaccinated against COVID-19 as required by Executive Order 14042.  The deadline is now January 18, 2022, meaning that employees must receive their final vaccine dose by January 4, 2022. This is now the third deadline for vaccination set by the Safer Federal Workforce Task Force.  In its initial Guidance, the Task Force established a December 8, 2021 deadline.  However, when the Biden Administration issued the Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard and Center for Medicare and Medicaid Services (CMS) vaccination mandate on November 4, 2021, it also pushed back the deadline for federal contractor employees to become fully vaccinated until January 4, 2021 in order to conform Executive Order 14042’s deadline to OSHA’s and CMS’s deadlines. The Task Force did not provide any explanation for the disparity between the January 4 and January 18 dates.

Lawsuits challenging the COVID-19 Vaccination and Testing (the “ETS”) issued by the Occupational Safety and Health Administration (“OSHA”) were filed in three additional U.S. Circuit Courts of Appeals on Wednesday, November 10, 2021. Labor unions filed lawsuits in the U.S. Circuit Court of Appeals for the Second, Fourth, and Ninth Circuits. As a result, there are now ETS-related lawsuits pending in the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Eleventh, and D.C. Circuit Courts. According to federal rules, the legal challenges to the OSHA ETS will be consolidated and heard by a single U.S. Circuit Court of Appeals. The Judicial Panel on Multidistrict Litigation will conduct a lottery, expected on November 16, to select which U.S. Circuit Court of Appeals will hear the consolidated litigation. The court to hear the litigation will be drawn “from a drum containing an entry for each circuit wherein a constituent petition for review is pending.” Each court only gets one entry, despite the number of petitions pending before each court. Until the Judicial Panel selects the U.S. Circuit Court of Appeals to hear the litigation via the lottery, all the U.S. Circuit Courts of Appeals can proceed with rulings, as the Fifth Circuit did this past weekend. The labor unions’ move may be a move reflective of an intent by some to increase the odds that the OSHA ETS is upheld. The First, Second, and Fourth circuits all have a majority of Democratic-appointed judges. But it is difficult to predict the future of the OSHA ETS as the panel of judges to hear the case is also selected randomly. Polsinelli attorneys will continue to monitor and report on challenges to the ETS.

As previously reported, Texas, Louisiana, Mississippi, South Carolina, Utah and several other private entities filed suit in the U.S. Circuit Court of Appeals for the Fifth Circuit on November 5 requesting review of the emergency temporary standard regarding COVID-19 Vaccination and Testing (the “ETS”) issued by the Occupational Safety and Health Administration (“OSHA”). The lawsuit was accompanied by an emergency motion to stay enforcement of the OSHA ETS. Today, November 6, 2021, the Fifth Circuit granted the emergency motion to stay enforcement pending further action by the Court. The Fifth Circuit provided the Federal government until 5:00 p.m. Monday, November 8, 2021, to respond to the lawsuit’s request for a permanent injunction. The Justice Department declined to comment and the White House referred comment to the Department of Labor. 

Twenty-six states have filed suit to challenge the emergency temporary standard regarding COVID-19 Vaccination and Testing (the “ETS”) issued by the Occupational Safety and Health Administration (“OSHA”) on November 4, 2021, and published in the Federal Register on November 5, 2021. Federal courts have previously held that OSHA rules are ripe for challenge when the rule is published in the Federal Register. Within hours of publication in the Federal Register, the legality of the OSHA ETS is pending in the 5th, 6th, 8th, and 11th U.S. Circuit Court of Appeals. A coalition including Missouri, Arizona, Nebraska, Montana, Arkansas, Iowa, North Dakota, South Dakota, Alaska, New Hampshire, Wyoming, and five additional private entities (the “Coalition”) filed suit in the 8th U.S. Circuit Court of Appeals arguing that the power to compel vaccinations rests not with the federal government, but with the states. The Coalition argues that OSHA’s ETS goes beyond workplace safety and into public health policy, which the states assert exceeds OSHA’s statutory authority. Lawsuits filed by Texas, Louisiana, Mississippi, South Carolina, and Utah in the 5th U.S. Circuit Court of Appeals, Florida, Alabama, and Georgia in the 11th U.S. Circuit Court of Appeals, and Kentucky, Idaho, Kansas, Ohio, Oklahoma, Tennessee, and West Virginia filed in the 6th U.S. Circuit Court of Appeals similarly challenge the legality of the OSHA ETS. Kentucky, Ohio and Tennessee also filed suit challenging the Biden Administration’s mandate requiring federal contractors to be vaccinated. The lawsuit sets forth similar bases to challenge the federal contractor mandate, alleging that the police power to enforce vaccines rests with the states, not the federal government. Likewise, the states assert that the federal contractor mandate exceeds the President’s statutory authority. Polsinelli will continue to monitor these lawsuits. Contact your Polsinelli attorney if you have any questions regarding the mandates at issue and/or the impact of the lawsuits on your business.

On November 4, 2021, the Biden Administration issued a Fact Sheet announcing the release of its long-awaited Occupational Safety and Health Administration (OSHA) and Center for Medicare and Medicaid Services (CMS) COVID-19 vaccination mandates.  The Fact Sheet delivered significant news for federal government contractors by announcing that the December 8, 2021 deadline for compliance with Executive Order 14042’s COVID-19 vaccination mandate for contractors will be extended to January 4, 2022, the same deadline set forth in the OSHA Emergency Temporary Standard and CMS mandate. The Fact Sheet also announced that the new OSHA mandate is inapplicable to workplaces that are subject to Executive Order 14042’s vaccination mandate in order to streamline compliance and avoid the need to track multiple vaccination requirements for the same employees.  This will allow some federal contractors to avoid the substantial documentation and recordkeeping requirements imposed by the new OSHA standard.  However, it also means that federal contractors cannot offer employees who work on or in connection with a federal contract the testing option that is available under OSHA’s Emergency Temporary Standard.  Some contractors that have purely commercial workplace locations not subject to Executive Order 14042 may be subject to both the Executive Order’s and OSHA’s mandates. The announcement follows closely on a November 1, 2021 update to the Safer Federal Workforce Task Force’s Frequently Asked Questions on the contractor mandate that provided additional flexibility to federal contractors in implementing the requirement.  Specifically, the new FAQ guidance clarified that employees with pending religious or disability-based accommodation requests may continue to work – subject to the masking and social distancing protocols applicable to unvaccinated employees – while their requests are adjudicated.  The new FAQs also provide contractors with some additional flexibility in addressing covered employees who refuse to become fully vaccinated by the deadline.  It is unclear whether the Task Force will eliminate this flexibility in light of the delay in the Executive Order’s deadline. As of 2:00 PM EST on November 4, 2021, the Safer Federal Workforce Task Force had not updated its Guidance or FAQs to incorporate the new deadline announced in the Fact Sheet.  We expect that additional guidance from the Task Force will follow in the near future.

Today, November 4, 2021, the Occupational Safety and Health Administration (OSHA) issued the emergency temporary standard regarding COVID-19 Vaccination and Testing (the “ETS”) previously unveiled in President Biden’s COVID-19 Action Plan.  Employers with a total of 100 or more employees firm- or corporate-wide at any time the ETS is in place are bound by the requirements established in the ETS. The ETS does not cover workplaces that are subject to the Safer Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors or in settings subject to the OSHA Healthcare ETS. The ETS explicitly preempts state and local laws. The ETS establishes minimum vaccination, vaccination verification, face covering, and testing requirements to address COVID-19 in the workplace. The key requirements of the ETS are: Develop a policy for vaccination – Covered employers must develop, implement, and enforce a mandatory COVID-19 vaccination policy. Employers may elect to implement a policy allowing employees to not be vaccinated, but instead be tested weekly for COVID-19 and to wear a face covering at work. Support employees choosing to get vaccinated – Employers must provide employees reasonable time, up to four (4) hours of paid time, to get vaccinated (this applies to both doses). The ETS also requires reasonable time and paid sick leave for employees to recover from any side effects they may experience from the vaccine. Unvaccinated employees must be tested – Employers must ensure that each employee who is not fully vaccinated is tested at least weekly for COVID-19 (if the employee is in the workplace once a week) or within seven (7) days before returning to work (if away from the workplace for a week or longer). Employers are not required to pay for any costs associated with testing. However, employers may be required to pay for testing under other laws, regulations, or agreements. Employees must notify their employer of a positive test – Employers must require their employees to notify them promptly after receiving a positive COVID-19 test result or diagnosis. Employers must immediately remove any employee who tests positive or is diagnosed with COVID-19, regardless of vaccination status. Employers must require employees who test positive or are diagnosed with COVID-19 to remain out of the workplace until they have met the criteria for returning to work. The ETS does not require employers to pay employees who are removed from work due to testing positive or being diagnosed with COVID-19. Face coverings – Employers must require employees who are not fully vaccinated to wear a face covering when indoors or when operating a vehicle with another person. Any employee who elects to wear a face covering must be allowed to do so. Provide information to employees – Employers must provide information at a readily understandable level to their employees concerning:  the requirements of the ETS and workplace policies and procedures established to implement the ETS, the CDC document “Key Things to Know About COVID-19 Vaccines”, information about protections against retaliation and discrimination, and information about laws that impose criminal penalties for knowingly supplying false statements or documents. A more in-depth analysis of the ETS is available, please email polsinellimarketing@polsinelli.com for more details. For additional CMS information read our latest blog post, CMS Mandates Vaccines for Staff of Medicare and Medicaid Providers and Suppliers. Join us for our upcoming webinar, in which we will discuss federal and state-specific vaccine mandates, exemptions and paths for navigation and implementation: Managing Vaccine Mandates and Exemptions. Tuesday, November 16 | 11:00 AM - 12:15 PM CT Click here to register.

In deferring to the Washington Department of Labor and Industries’ (“Department”) interpretation of its own regulation, a Washington Court of Appeals ruled that employee’s’ out-of-town travel time—including travel time to and from the airport, time in the airport, and time in the air—on behalf of their employer was compensable, a far broader interpretation than applied under the federal Fair Labor Standards Act. In Port of Tacoma v. Joel Sacks, Department of Labor & Industry, the Department investigated wage claims filed by four employees who had been sent by their employer, the Port of Tacoma, to be part of a quality inspection team in China to observe the manufacturing process of cranes that were to be purchased by the Port. The Port made all the arrangements for the trips, including air transportation. Consistent with their union’s agreement with the Port, the employees were paid a maximum of eight hours per day, regardless of the actual time spent traveling. In their wage claims, the employees argued they were entitled to payment for all travel time: including travel to and from the airport, all time spent at the airport, and all time spent in flight. The Department agreed and issued a citation to the Port, who in turn challenged the citation. The lower court granted summary judgment in favor of the Port and held that “travel time” did not meet the definition of “hours worked,” and was not compensable. The employees appealed. The Court of Appeals reversed, reaching the opposite conclusion for three reasons: Out-of-town travel is different than the daily commute, which is not compensable “hours worked”; The Court owed deference to the Department’s interpretation of its own regulations, which had found that the out-of-town travel was compensable “hours worked”; and Out-of-town travel being compensable “hours worked” was consistent with the plain language of the state wage laws requiring compensation for work “on duty” and with the liberal construction given to those laws in favor of the worker. Washington employers should revisit their travel-time policies and practices to ensure that non-exempt employees are paid for all out-of-town travel time—even time when the employees are not engaged in work for the company. When arranging for out-of-town travel for employees, employers should pay attention to the amount of time that such travel will entail—and consider flights with shorter layovers, hotels closer to the airport, and other similar considerations. The ruling also makes clear that employers should pay close attention to Department guidance and interpretation. If you have questions regarding this decision, please contact your Polsinelli attorney.

Texas’ Third Special Session ended on October 19, 2021 without the Texas Legislature codifying any law related to Governing Abbott’s recent Executive Order (GA-40), which prohibits entities (including private employers and businesses) from compelling COVID-19 vaccinations. Polsinelli’s summary of this Executive Order can be read here. Absent Texas’ Governor Abbott calling a Fourth Special Session, the Texas Legislature will not reconvene until January 2023—meaning the substance of the Executive Order is unlikely to become state law. The lack of any legislative movement on this issue is noteworthy because Governor Abbott had called on the Texas Legislature to take up this matter—which was introduced as Senate Bill 51 (“SB 51”)—during the Third Special Session. SB 51 was aimed at protecting certain individuals, including employees, from varying levels of vaccine mandates. In going one step further, SB 51 would have made it unlawful if an employer fails to hire, discharges, “or otherwise discriminates against an individual with respect to the compensation or the terms, conditions or privileges of employment because the individual claims an exemption” such as a medical condition or reasons of conscience, including a religious belief. While the Texas Legislature’s refusal to advance this bill does not impact the enforceability of this Executive Order (which remains in place), it does signal that the Texas Legislature does not have an appetite for codifying additional restrictions on what private businesses may mandate with their employees. Once OSHA’s forthcoming Emergency Temporary Standard is issued (which will require covered employers to mandate vaccination or weekly testing with their employees), this may change. In the interim, Polsinelli attorneys will continue to monitor and report on new vaccine mandate developments and are available to answer questions about how employers should navigate these issues.

The Colorado Department of Labor and Employment (“CDLE”) recently issued several proposed rules, including new language defining “vacation pay” for purposes of Colorado’s wage laws. Colorado law has long defined “wages” and “compensation” as including “vacation pay earned in accordance with the terms of any agreement.” C.R.S. § 8-4-101(14)(a)(III). Until recently, there has been significant debate regarding whether Colorado’s statute prohibits so-called “use-it-or-lose-it” vacation policies. On June 14, 2021, the Colorado Supreme Court settled the debate, issuing its highly anticipated decision in Nieto v. Clark’s Market, ruling that employers must pay out an employee’s earned but unused vacation pay upon separation of employment and any handbook provision or agreement to the contrary is not enforceable. 488 P.3d 1140 (Colo. 2021). A lingering question for employers—both before and after the Nieto decision—has been whether leave accrued under a Paid Time Off (“PTO”) policy that can be used for both vacation and other types of leave, including sick leave, is included within Colorado’s use-it-or-lose-it prohibition. On September 30, 2021, the CDLE ostensibly answered the question regarding use-it-or-lose-it policies for PTO in a proposed rule. The proposed rule defines “vacation pay” as “pay for leave, regardless of its label, that is usable at the employee’s discretion (other than procedural requirements such as notice and approval of particular dates), rather than leave usable only upon occurrence of a qualifying event (for example, a medical need, caretaking requirement, bereavement, or holiday).” 7 C.C.R. 1103-7-2.17.1. The CDLE’s new definition of “vacation pay” removes any question that PTO, or a similar policy by any other name, that can be used for vacation, is included within the definition of vacation pay and cannot be forfeited. Employers should review their vacation policies to remove use-it-or-lose-it language as required under the Nieto decision. With respect to PTO policies, while the language in the proposed rule must undergo the rulemaking process—including public comment and a public hearing—and the final rule will not take effect until 2022, employers will also need to prepare to remove use-it-or-lose-it language because PTO policies are included within the CLDE’s new definition of “vacation pay.” As an alternative to use-it-or-lose-it policies, and to limit the amount of PTO they potentially must pay out at separation, employers can consider implementing a cap on accrual. Under such a system, once an employee earns a certain number of vacation (or PTO) hours, the employee no longer accrues further vacation (or PTO) time until taking some of his or her previously accrued time. After using available accrued hours, the employee will once again accrue vacation (or PTO) hours. Under this type of policy, the amount of PTO ever accrued, and therefore potentially paid out at separation, is naturally limited. Contact your Polsinelli attorney if you have questions regarding the new rule or need assistance in review of your PTO policy.

In September, 40 current and former employees of St. Elizabeth Medical Center in Kentucky sued the privately-owned hospital over its mandatory COVID-19 vaccination policy, alleging violations of their constitutional rights, the Americans with Disabilities Act, and Title VII.  The policy required employees to either receive a COVID-19 vaccine or submit a request for a religious or medical exemption prior to October 1, 2021.  Consequences for failure to comply included possible termination of employment. Although the case is still ongoing, on September 24, 2021, United States District Judge David L. Bunning (E.D. Ky.) refused to stop the policy from going into effect during the legal battle.  Judge Bunning determined that the plaintiffs failed to satisfy the stringent standard for obtaining injunctive relief, which requires a strong likelihood of success on the merits, a demonstration of irreparable harm absent an injunction or temporary restraining order, a showing that no substantial harm to others will result from the order, and a demonstration that the public interest will not be disserved. On the first factor, the Court determined that plaintiffs’ likelihood of success on the merits of their constitutional claims is “virtually nonexistent” because St. Elizabeth is not a state actor.  On their ADA claim, the Court found that plaintiffs failed to show that St. Elizabeth had not complied with the requirement that a private employer provide necessary medical accommodations to the vaccine requirement.  The Court cited the fact that as of September 21, 2021, St. Elizabeth had granted either full exemptions or deferments to 75% of employees who had requested a medical accommodation.  The Court also determined that plaintiffs could not state a prima facie case of discrimination under the ADA because they had not sufficiently alleged adverse employment action because of a disability.  On their Title VII claim, the Court found plaintiffs “failed to even suggest that they could raise a prima facie case of religious discrimination” as 11 of the plaintiffs had in fact been granted religious exemptions, some had not sought one, and none had been denied a religious exemption. The Court also found that plaintiffs could not demonstrate irreparable harm, in part because loss of employment and injuries stemming from wrongful termination can be fully compensated by monetary damages.  The Court also rejected plaintiffs claim of irreparable injury to their constitutional rights because constitutional rights are not implicated by the actions of non-state actors. On the final two factors, the Court determined that the balance of the equities weighed in favor of denying injunctive relief, reasoning that plaintiffs’ concerns about the efficacy and safety of the COVID-19 vaccines do not override St. Elizabeth’s right to impose conditions of employment. St. Elizabeth filed a motion to dismiss plaintiffs’ complaint on September 14, 2021.  Although the final disposition of plaintiffs’ challenge remains to be seen, the Court’s determination that plaintiffs did not have a likelihood of success on the merits at the injunction stage is telling.

On October 11, 2021, Governor Abbott issued Executive Order GA-40, stating that no entity in Texas (including private employers and businesses) can compel COVID-19 vaccination by any individual, including an employee or consumer who objects to such vaccination because of (1) personal conscience, (2) religious belief, or (3) medical reasons, including prior recovery from COVID-19. Entities that fail to comply with this order may be fined up to $1,000. The order expressly states that it was enacted in response to the Biden Administration. Last month, the Biden Administration implemented various vaccine mandates for certain employers, including health care facilities that receive funds from the Medicare or Medicaid reimbursement program, federal contractors, and employers with 100 or more employees (once OSHA’s forthcoming Emergency Temporary Standard is issued). In turn, there will likely soon be legal challenges to the scope of the Executive Order—including whether it is preempted by conflicting federal mandates. While the Executive Order allows non-compliant entities to be fined, the order does not expressly address any workplace protections or rights. For example, if an employee is terminated for refusal to comply with an employer’s vaccine mandate (unrelated to a religious and medical exemption), does he or she now have legal recourse? Following the issuance of this Executive Order, discharged employees may attempt to bring what is known as a Sabine Pilot claim. This public policy claim is extremely narrow in application and generally only applies in instances where an employee is terminated for the refusal to perform an illegal act that carries criminal penalties—a scenario that such employees may have difficulty establishing in this context. Additionally, the Executive Order also leaves unanswered whether an employer’s vaccination policy is unlawful in instances where employees have the option to undergo weekly testing in lieu of receiving a COVID-19 vaccine. In a similar scenario, some commercial operators (e.g., concert venues) have sought to avoid Texas’ prohibition on requiring consumers to show proof of a COVID-19 vaccination, by allowing consumers the option to instead produce a negative COVID-19 test. Polsinelli attorneys will continue to monitor and report on new vaccine mandate developments and are available to answer questions about how employers should navigate these issues.

On September 15, 2021, the Ninth Circuit, in a 2-1 split decision, partially upheld a California law passed in 2019 governing the use of mandatory arbitration agreements by employers in California.  The state law, AB 51 (codified as California Labor Code section 432.6), prohibits employers in California from requiring employees to agree to arbitration as a condition of employment.  Before AB 51 went into effect on January 1, 2020, a group of employers and the U.S. Chamber of Commerce challenged the law in federal district court as preempted by the Federal Arbitration Act (“FAA”), and the federal court issued a preliminary injunction on January 31, 2020 temporarily preventing enforcement of the law. A Ninth Circuit panel reviewing the district court’s decision on appeal disagreed, vacating the preliminary injunction and holding that the provisions of AB 51 prohibiting employers in California from requiring employees to agree to arbitration as a condition of employment and from retaliating against applicants who refuse to sign an arbitration agreement are not preempted by the FAA. Curiously and somewhat confusingly, the Ninth Circuit distinguished in its analysis between an employer’s conduct before and after an employee signs an arbitration agreement.  The Court held that, while the FAA does not preempt AB 51 insofar as AB 51 regulates an employer’s pre-signing conduct (including an employer’s requiring that an employee sign an arbitration agreement as a condition of employment), the FAA does preempt AB 51’s attempt to prevent enforcement of executed arbitration agreements (even those that are mandatory and, therefore, consummated in violation of AB 51) by imposing civil and criminal penalties on employers as punishment for entering into arbitration agreements otherwise enforceable under the FAA. The upshot for California employers is that the ruling does not impact the enforceability of executed arbitration agreements, including existing mandatory arbitration agreements. However, for new employees or those who have not already signed an arbitration agreement, the Court’s decision preserves AB 51’s ban on employers requiring that such employees sign arbitration agreements as a condition of employment, and continues to prohibit employers from retaliating against an employee for refusing to do so.  Although the ruling eliminates the imposition of civil and criminal penalties in connection with an executed arbitration agreement, civil and criminal penalties could still be imposed if the employer were to terminate, refuse to hire or otherwise retaliate against an employee or applicant because they refused to sign an arbitration agreement. Following the Ninth Circuit’s decision, AB 51 will go back to the district court pending another appeal, where the case has been remanded for further proceedings.  However, the Ninth Circuit’s decision does not immediately allow for enforcement of AB 51.  The Court’s decision takes effect only once the Court issues its “mandate” relinquishing jurisdiction over the case.  Additionally, the U.S. Chamber of Commerce has been granted an extension of time to file a Petition for Rehearing en banc of the Ninth Circuit’s decision, and issuance of the Ninth Circuit’s mandate is likely to be automatically stayed if and when such a Petition is filed.  Moreover, the U.S. Chamber of Commerce may ultimately file a Petition for Certiorari to the U.S. Supreme Court, in which case the Chamber may move to stay issuance of the Ninth Circuit’s mandate pending review by the U.S. Supreme Court. Practically speaking, employers in California are left in limbo while they await final resolution of this case and a final determination as to AB 51’s constitutionality.  Employers with existing mandatory arbitration agreements in place and those who wish to continue to require their employees to enter into arbitration agreements as a condition of employment should reach out to employment counsel to discuss their various options and the associated risks.  As always, Polsinelli attorneys continue to monitor new developments relating to AB 51 and mandatory arbitration issues, and they remain prepared to assist employers with navigating these issues.

On September 24, 2021, the Safer Federal Workforce Task Force (Task Force) published its expected guidance regarding the COVID-19 vaccination mandate for federal government contractors.  This Guidance defines the specific parameters of the vaccine mandate, as well as other safety protocols that contractors must follow. The Guidance clarifies that all “covered employees” must be fully-vaccinated by December 8, 2021.  An employee is fully vaccinated two weeks after he or she receives all doses of an approved vaccine.  Employees are not required to receive any vaccine booster to qualify as fully vaccinated.  Contractors are required to obtain documentation of each employee’s vaccination status – an employee’s attestation is not sufficient.  In addition, the Guidance provides that prior COVID-19 infection or antibody test results may not be substituted for vaccination.  After December 8, 2021, contractors must ensure that employees are fully vaccinated by the first day of performance on a federal contract. The Guidance provides for accommodations from its mandate for employees who communicate that they are not vaccinated due to a sincerely-held religious belief or disability.  Contractors are responsible for determining accommodations, even when the employee performs his or her services at a federal worksite. As suggested by the Executive Order announcing the mandate, the vaccination requirement will apply to some employees of federal contractors who do not work on or in connection with a federal contract, and instead perform only commercial work.  A “covered employee,” for purposes of the mandate, includes any full-time or part-time employee who works at a location at which an employee working on or in connection with a contract “is likely to be present.”  So, an employee performing solely commercial work in a facility, building, or campus where contract work is also being performed would likely be subject to the mandate.  The Guidance has a limited exception for situations where commercial and contract workers perform services in distinct areas of the same facility, but the contractor must “affirmatively determine” that there will be “no interactions,” including in common areas like lobbies, elevators, and parking garages, between contract and commercial employees at the facility in order to avoid extending the vaccine requirement to all employees at the facility.  Fully remote workers who perform work on federal contracts from home are also subject to the vaccination mandate. In addition to the vaccine mandate, federal contractors are also subject to new masking and social distancing protocols.  Unvaccinated employees (i.e., those who obtain accommodations from the mandate) are required to wear masks in indoor and crowded outdoor areas and maintain a distance of six feet from others at all times to the extent practicable.  Vaccinated employees are required to wear masks indoors in areas of high or substantial community transmission, as determined by the CDC.  In areas of low or moderate transmission, fully vaccinated employees do not need to wear a mask.  Regardless of the transmission level, fully vaccinated employees are not required to socially distance. Contractors are required to check the CDC’s transmission level for any covered work locations on a weekly basis to determine the proper safety protocols. Contractors are also required to ensure that visitors comply with applicable masking and social distancing requirements. Contractors must also designate a specific employee to coordinate COVID-19 workplace safety efforts at covered workplaces.  Fully remote employees who work from home are not required to follow masking or social distancing protocols. Contractors with federal contracts or subcontracts pre-dating October 15, 2021 will be required to comply with the Guidance when an extension or option is exercised with respect to the contract.  After November 14, 2021, most new federal contracts will contain the clause requiring compliance.  For contracts issued between October 15, 2021 and November 14, 2021, agencies appear to have some leeway with respect to inclusion of the contract clause, though the Guidance and prior Executive Order strongly encourage the clause’s inclusion. COVID-19 vaccine mandates present complex issues for employers, especially when employees request religious or disability-based accommodations.  The proliferating COVID-19 vaccine mandates – from the Guidance, OSHA’s forthcoming emergency temporary standard, and, in some jurisdictions, state and local authorities – only add additional complexity to this rapidly-developing issue.  Given the short timeframe between the October 15, 2021 date on which the clause will start being included in contracts and the December 8, 2021 vaccination date, contractors who expect to receive covered contracts in the near future should begin preparing now to ensure their workforce’s compliance with the vaccination mandate.

On September 24, 2021, the Safer Federal Workforce Task Force (Task Force) published its expected guidance regarding the COVID-19 vaccination mandate for federal government contractors.  This Guidance defines the specific parameters of the vaccine mandate, as well as other safety protocols that contractors must follow. The Guidance clarifies that all “covered employees” must be fully-vaccinated by December 8, 2021.  An employee is fully vaccinated two weeks after he or she receives all doses of an approved vaccine.  Employees are not required to receive any vaccine booster to qualify as fully vaccinated.  Contractors are required to obtain documentation of each employee’s vaccination status – an employee’s attestation is not sufficient.  In addition, the Guidance provides that prior COVID-19 infection or antibody test results may not be substituted for vaccination. After December 8, 2021, contractors must ensure that employees are fully vaccinated by the first day of performance on a federal contract. The Guidance provides for accommodations from its mandate for employees who communicate that they are not vaccinated due to a sincerely-held religious belief or disability. Contractors are responsible for determining accommodations, even when the employee performs his or her services at a federal worksite. As suggested by the Executive Order announcing the mandate, the vaccination requirement will apply to some employees of federal contractors who do not work on or in connection with a federal contract, and instead perform only commercial work.  A “covered employee,” for purposes of the mandate, includes any full-time or part-time employee who works at a location at which an employee working on or in connection with a contract “is likely to be present.”  So, an employee performing solely commercial work in a facility, building, or campus where contract work is also being performed would likely be subject to the mandate.  The Guidance has a limited exception for situations where commercial and contract workers perform services in distinct areas of the same facility, but the contractor must “affirmatively determine” that there will be “no interactions,” including in common areas like lobbies, elevators, and parking garages, between contract and commercial employees at the facility in order to avoid extending the vaccine requirement to all employees at the facility.  Fully remote workers who perform work on federal contracts from home are also subject to the vaccination mandate. In addition to the vaccine mandate, federal contractors are also subject to new masking and social distancing protocols. Unvaccinated employees (i.e., those who obtain accommodations from the mandate) are required to wear masks in indoor and crowded outdoor areas and maintain a distance of six feet from others at all times to the extent practicable. Vaccinated employees are required to wear masks indoors in areas of high or substantial community transmission, as determined by the CDC. In areas of low or moderate transmission, fully vaccinated employees do not need to wear a mask. Regardless of the transmission level, fully vaccinated employees are not required to socially distance. Contractors are required to check the CDC’s transmission level for any covered work locations on a weekly basis to determine the proper safety protocols. Contractors are also required to ensure that visitors comply with applicable masking and social distancing requirements. Contractors must also designate a specific employee to coordinate COVID-19

We are pleased to announce the launch of the first episode in the new Inside Law podcast series, “The Future is Now” hosted by Polsinelli's Labor & Employment practice. In this podcast, Rob Entin and Mark Nelson discuss the impact of the new National Labor Relations Board General Counsel Jennifer Abruzzo, her decades of experience with the Board, and what employers should expect in her aggressive pro-union agenda as the “chief prosecutor” of the National Labor Relations Act: significant change is on the horizon. Click here to listen to the full podcast.

Following the enactment of the Victims’ Economic Safety and Security Act (VESSA), Missouri joins over 30 states requiring employers to provide protections to employees who are victims of domestic or sexual violence in the form of leave and accommodations. Missouri employers with 50 or more employees must provide up to two weeks of unpaid leave (one week for 20-49 employees) for employees who are victims of domestic or sexual violence or have a family or household member who is a victim of such violence. Covered employers must also provide reasonable safety accommodations to eligible employees for “known limitations resulting from circumstances relating to being a victim of domestic or sexual violence or being a family or household member of a victim of domestic or sexual violence” unless the accommodation poses an undue hardship resulting from significant difficulty or expense.  Examples of defined accommodations include adjustments to job structure, modified scheduled, leave, safety procedures, and assistance in documenting domestic violence that occurs at the workplace. Employers must also notify all current employees of their rights under VESSA by October 27, 2021 for all current employees and upon hire for all employees hired after October 27.  VESSA also prohibits employers from retaliating or discriminating against employees who seek benefits under the statute in their terms and conditions of employment. Missouri employers should update their handbooks and policies, train supervisors and human resources on the law’s new protections, and ensure the required notifications are timely provided to employees.  If you have any questions about how Missouri’s newly enacted VESSA law or other states’ similar laws applies to your business and employees, contact your Polsinelli employment attorney.

In an attempt to contain the continuing COVID-19 pandemic, President Biden issued two Executive Orders on September 9, 2021 that mandate COVID-19 vaccines for federal government employees and employees of federal government contractors. Although key details of these vaccine mandates have yet to be defined, the new measures appear to build on the administration’s recent mandate for vaccination or testing of contractor employees who work on-site at federal locations.  As a result of these new mandates, federal government contractors will soon be presented with complex and risk-laden decisions as employees seek exemptions, to the extent available, from the vaccine mandate. The Basics of the Executive Orders The first executive order is applicable to federal government employees, and requires the Safer Federal Workforce Task Force (Task Force) to issue guidance requiring a vaccine mandate for federal agency employees.  Federal agencies are then required to implement the Task Force’s guidance “with exceptions only as required by applicable law.”  The second executive order is applicable to federal government contractors, and provides that new government contracts and contract-like instruments must include a clause requiring the contractor and “any subcontractors (at any tier)” to comply with “all guidance” issued by the Task Force.  Pursuant to the terms of the contractor Executive Order, the clause’s requirements are applicable to “any workplace locations (as specified by the Task Force Guidance) in which an individual is working on or in connection with a Federal Government contract or contract-like instrument.”  The Executive Order applicable to federal contractors provides that the Task Force will issue its guidance by September 24, 2021, and outline “definitions of relevant terms,” “explanations of protocols required of contractors and subcontractors,” and “any exceptions” to the vaccination mandate. What Types of Federal Contracts Trigger the Vaccine Mandate? The vaccine mandate is applicable to any contract or contract-like instrument that is entered into, extended, renewed, or has an option exercised on or after October 15, 2021. However, the Executive Order is effective immediately and agencies are “strongly encouraged, to the extent permitted by law” to extend the vaccine mandate to existing contracts not otherwise subject to the Executive Order.  The Executive Order adopts the definition of “contract or contract-like instrument” from the Department of Labor’s minimum wage regulations, and thus presumably excludes procurement contracts excluded from the Davis-Bacon Act and service contracts excluded from the Service Contract Act.  The Executive Order explicitly excludes federal grants, contracts with Indian Tribes, employees who perform work outside of the United States, contracts equal or less than the simplified acquisition threshold (generally $250,000), and subcontracts solely for the provision of products. Which Employees are Covered By the Mandate? The new contract clause will “apply to any workplace locations (as specified by the Task Force Guidance) in which an individual is working on or in connection with a Federal Government contract or contract-like instrument.”  The “on or in connection with” standard is borrowed from the federal contractor minimum wage requirement.  Employees perform services “on” a contract when they perform the work required by the contract, and perform “in connection with” a federal contract when they perform services that are not required by the contract, but are necessary to the performance of the contract’s services, such as custodial, security, or maintenance services at facilities that perform both commercial and government work.  The executive order applies to “any workplace locations . . . in which an individual is working on or in connection” with a contract.  On its face, this would apply the vaccine mandate to full-time remote workers who do not interact in-person with any other co-workers. The Executive Order is ambiguous about several important issues, which will need to be fleshed out by the Task Force’s guidance.  First, in the context of the federal contractor minimum wage requirement, employees who work only “in connection with” a contact are not covered unless more than 20% of their work time is spent performing contract-related services.  Will the same 20% threshold apply to the vaccine mandate?  Second, the Executive Order is phrased to apply to “any workplace locations” where contract work is performed, rather than to employees performing the work.  Arguably, the mandate may cover workers performing only commercial work if there is also government contract work performed at the employee’s “workplace location,” which is itself a potentially ambiguous term pending further guidance from the Task Force. What Exemptions are Applicable? The Executive Order provides that the Task Force should permit only exceptions “required by applicable law.”  Presumably, this would include disability, religious, and pregnancy accommodations that are required by federal statutes. To date, many employers implementing vaccine mandates have struggled with these accommodation requirements, which present complex and nuanced legal issues.  To the extent the Task Force’s guidance regarding exemptions is different than generally-applicable federal law, it will only add to the complexity. Moreover, state law may impose different or additional requirements, including laws in some states protecting workers against mandatory vaccine mandates, which may conflict with the mandate required by the Executive Order.  To the extent there is ambiguity as to which employees are actually covered by the Executive Order, the potentially conflicting obligations under the Executive Order and state laws may pose challenging dilemmas for employers. COVID-19 vaccine mandates present complex legal issues for employers, especially when employees claim a right to religious, disability, pregnancy, or other accommodations. Federal contractors should begin working with counsel now to prepare for the new mandate required by the executive orders, including implementing procedures to communicate with employees regarding the mandate, ascertain employees’ vaccination statuses, and process and address requests for accommodations.

On September 9, 2021, President Biden unveiled a COVID-19 Action Plan that requires, among other things, millions of private-sector employees, health care workers, federal employees, and employees of federal contractors to be vaccinated against COVID-19. The announcement resulted in a political firestorm, leaving many employers wondering how new rules might affect both them and their employees. Announcement. President Biden mandated that employees working (1) within the executive branch of the federal government, (2) for employers with 100 or more employees, (3) at health care facilities that receive funds from the Medicare or Medicaid reimbursement program, and (4) for federal contractors, be vaccinated against COVID-19. Employers with over 100 employees are given the option to ensure their workforce is fully vaccinated or require testing on at least a weekly basis. Employers of over 100. President Biden charged the Occupational Safety and Health Administration (OSHA) with responsibility for issuing an emergency temporary standard related to businesses with 100 or more employees. Specifically what OSHA might order is yet to be seen, but mandatory vaccination or regular testing on at least a weekly basis, plus paid time off to get vaccinated and to recover from any side effects, will be included. Penalties of $14,000 per violation are also anticipated. There will likely be legal challenges regarding OSHA’s authority to issue such standards under current circumstances. To prevail, OSHA must prove that workers are exposed to a grave danger and the standards are necessary to address that danger. Any emergency standard must also be feasible for employers to enforce. Good news for employers seeking consistency may be that any OSHA standard would pre-empt existing rules by state and local governments, except in states with their own OSHA-approved workplace agencies (https://www.osha.gov/stateplans). Those states would have 30 days to adopt a standard that is (1) at least as effective as the OSHA standard, and (2) covers state and local government employees not covered by OSHA. Health care employees. President Biden’s Action Plan provides that the Centers for Medicare & Medicaid Services (CMS) will expand the vaccination requirement it issued for nursing home staff to other health care settings that receive Medicare and Medicaid reimbursement, including but not limited to hospitals, home-health agencies, ambulatory surgical settings, and dialysis centers. Education employees. The Department of Health and Human Services will require vaccinations in Head Start Programs, and schools run by the Department of Defense and Bureau of Indian Education, affecting about 300,000 employees. Federal employees. President Biden’s Action Plan requires all Federal employees to be vaccinated, with exceptions only as required by law (such exceptions include exemptions for employees with religious or medical reasons for avoiding vaccination). Federal employees who do not qualify for such exemptions but nonetheless refuse to be vaccinated will be counseled and disciplined, up to and including potential termination of employment. President Biden also signed an Executive Order directing that the Department of Defense, the Department of Veterans Affairs, the Indian Health Service, and the National Institute of Health extend this standard to employees of contractors that do business with the federal government. We anticipate OSHA to issue the emergency temporary standard and CMS to issue additional guidance related to President Biden’s Action Plan in the coming weeks. We will continue to provide updates as we learn more. If you have questions or would like more detailed information regarding these recent announcements, Polsinelli’s Labor & Employment team is here to assist.

In an attempt to contain the continuing COVID-19 pandemic, President Biden issued two Executive Orders on September 9, 2021 that mandate COVID-19 vaccines for federal government employees and employees of federal government contractors. Although key details of these vaccine mandates have yet to be defined, the new measures appear to build on the administration’s recent mandate for vaccination or testing of contractor employees who work on-site at federal locations.  As a result of these new mandates, federal government contractors will soon be presented with complex and risk-laden decisions as employees seek exemptions, to the extent available, from the vaccine mandate. The Basics of the Executive Orders The first executive order is applicable to federal government employees, and requires the Safer Federal Workforce Task Force (Task Force) to issue guidance requiring a vaccine mandate for federal agency employees.  Federal agencies are then required to implement the Task Force’s guidance “with exceptions only as required by applicable law.”  The second executive order is applicable to federal government contractors, and provides that new government contracts and contract-like instruments must include a clause requiring the contractor and “any subcontractors (at any tier)” to comply with “all guidance” issued by the Task Force.  Pursuant to the terms of the contractor Executive Order, the clause’s requirements are applicable to “any workplace locations (as specified by the Task Force Guidance) in which an individual is working on or in connection with a Federal Government contract or contract-like instrument.”  The Executive Order applicable to federal contractors provides that the Task Force will issue its guidance by September 24, 2021, and outline “definitions of relevant terms,” “explanations of protocols required of contractors and subcontractors,” and “any exceptions” to the vaccination mandate. What Types of Federal Contracts Trigger the Vaccine Mandate? The vaccine mandate is applicable to any contract or contract-like instrument that is entered into, extended, renewed, or has an option exercised on or after October 15, 2021. However, the Executive Order is effective immediately and agencies are “strongly encouraged, to the extent permitted by law” to extend the vaccine mandate to existing contracts not otherwise subject to the Executive Order.  The Executive Order adopts the definition of “contract or contract-like instrument” from the Department of Labor’s minimum wage regulations, and thus presumably excludes procurement contracts excluded from the Davis-Bacon Act and service contracts excluded from the Service Contract Act.  The Executive Order explicitly excludes federal grants, contracts with Indian Tribes, employees who perform work outside of the United States, contracts equal or less than the simplified acquisition threshold (generally $250,000), and subcontracts solely for the provision of products. Which Employees are Covered By the Mandate? The new contract clause will “apply to any workplace locations (as specified by the Task Force Guidance) in which an individual is working on or in connection with a Federal Government contract or contract-like instrument.”  The “on or in connection with” standard is borrowed from the federal contractor minimum wage requirement.  Employees perform services “on” a contract when they perform the work required by the contract, and perform “in connection with” a federal contract when they perform services that are not required by the contract, but are necessary to the performance of the contract’s services, such as custodial, security, or maintenance services at facilities that perform both commercial and government work.  The executive order applies to “any workplace locations . . . in which an individual is working on or in connection” with a contract.  On its face, this would apply the vaccine mandate to full-time remote workers who do not interact in-person with any other co-workers. The Executive Order is ambiguous about several important issues, which will need to be fleshed out by the Task Force’s guidance.  First, in the context of the federal contractor minimum wage requirement, employees who work only “in connection with” a contact are not covered unless more than 20% of their work time is spent performing contract-related services.  Will the same 20% threshold apply to the vaccine mandate?  Second, the Executive Order is phrased to apply to “any workplace locations” where contract work is performed, rather than to employees performing the work.  Arguably, the mandate may cover workers performing only commercial work if there is also government contract work performed at the employee’s “workplace location,” which is itself a potentially ambiguous term pending further guidance from the Task Force. What Exemptions are Applicable? The Executive Order provides that the Task Force should permit only exceptions “required by applicable law.”  Presumably, this would include disability, religious, and pregnancy accommodations that are required by federal statutes. To date, many employers implementing vaccine mandates have struggled with these accommodation requirements, which present complex and nuanced legal issues.  To the extent the Task Force’s guidance regarding exemptions is different than generally-applicable federal law, it will only add to the complexity. Moreover, state law may impose different or additional requirements, including laws in some states protecting workers against mandatory vaccine mandates, which may conflict with the mandate required by the Executive Order.  To the extent there is ambiguity as to which employees are actually covered by the Executive Order, the potentially conflicting obligations under the Executive Order and state laws may pose challenging dilemmas for employers. COVID-19 vaccine mandates present complex legal issues for employers, especially when employees claim a right to religious, disability, pregnancy, or other accommodations. Federal contractors should begin working with counsel now to prepare for the new mandate required by the executive orders, including implementing procedures to communicate with employees regarding the mandate, ascertain employees’ vaccination statuses, and process and address requests for accommodations.

On September 1, 2021, the Office of Federal Contract Compliance Programs (OFCCP) announced that it would “evaluate” using compensation data reported by federal contractors in annual EEO-1 filings to guide its enforcement efforts in the area of pay equity.  This decision reverses a Trump-era decision that OFCCP would not request, accept, or use the data, and is a step towards the agency’s expected heightened enforcement activity in the area of pay equity. OFCCP’s reversal appears to be the next chapter in the protracted history of the Obama-era EEOC’s effort to collect compensation data from federal contractors and other employers through a new “Component 2” of the annual Employer Information Report, more commonly known as the EEO-1, submission. In September 2016, EEOC obtained approval from the Office of Management and Budget (OMB) to collect pay data for calendar years 2017 and 2018, but the Trump administration OMB later attempted to revoke the authorization.  The Trump OMB’s revocation was invalidated by the U.S. District Court for the District of Columbia, which ordered the EEOC to conduct the previously approved pay data collection.  However, in September 2019 the EEOC announced it would not seek renewal of OMB’s authorization for later years.  OFCCP followed with its own announcement on November 25, 2019 that it would not “request, accept, or use Component 2 data, as it does not expect to find significant utility in the data,” because the Component 2 data was not collected at a level of detail sufficient to make comparisons of similarly-situated employees. Now, OFCCP has reversed its position and announced that it will “evaluate the data’s utility because the joint collection and analysis of compensation data could improve OFCCP’s ability to efficiently and effectively investigate potential pay discrimination.”  OFCCP’s announcement also indicates that the agency may consider the Component 2 data “in conjunction with other available information, such as labor market survey data” in selecting contractors for compliance evaluations. OFCCP’s EEO-1 announcement appears to set the table for enhanced enforcement in the area of pay equity and compensation discrimination, as OFCCP is signaling it will use the EEO-1 pay data to select contractors for compliance evaluations.  Given the agency’s discontinuance of disability- and veteran-oriented focused reviews in favor of full compliance evaluations, OFCCP will be collecting employee-level compensation information in all of its compliance evaluations.  The announcement may also signal that OFCCP is coordinating with the EEOC on reinstating the Component 2 requirement, as the 2017 and 2018 data collected by EEOC would appear to have limited utility on a going forward basis.

Texas Governor Greg Abbott recently signed two new bills, effective September 1, 2021, which will arm employees with new tools and protections for asserting sexual harassment in the workplace claims. Here is what Texas employers need to know: The definition of an “employer” has expanded. Currently, an employer must have 15 or more employees to be covered by the Texas Labor Code’s anti-sexual harassment laws. As of September 1st, Senate Bill 45 (Tex. Lab. Code § 21.141), will define an “employer” as a person who (1) employs “one or more employees;” and (2) “acts directly in the interests of an employer in relation to an employee.” First, the new definition means that all employers, including those with only one employee, could be held liable for damages as a result of sexual harassment claims. Second, supervisors, managers, and co-workers may also be named as defendants in sexual harassment lawsuits and held personally liable for damages. This is a major change because it creates the potential for individual liability against the alleged harasser (which previously only arose within the employment context when there was a common law claim for assault). As a result, far more Texas employees are now able to sue for unaddressed sexual harassment than before, in state court, and removing cases to federal court will be more difficult. It is also conceivable that the plaintiff’s bar will attempt to argue that independent contractors, vendors, clients, and other third-parties may qualify as “employers” under this new statute. This underscores the importance of employer’s not only reviewing their own internal policies and procedures, but also their vendor and service agreements with contract partners. The definition of “sexual harassment” is more detailed. The new law provides a clear, detailed, description of prohibited behavior. Specifically, sexual harassment is defined as “an unwelcome sexual advance, a request for sexual favor, or any other verbal or physical conduct of a sexual nature if: (a) submission to the advance, request, or conduct is made a term or condition of an individual’s employment, either explicitly or implicitly; (b) submission to or rejection of the advance, request, or conduct by an individual is used as the basis for a decision affecting the individual’s employment; (c) the advance, request, or conduct has the purpose or effect of unreasonably interfering with an individual’s work performance; or (d) the advance, request, or conduct has the purpose or effect of creating an intimidating, hostile, or offensive working environment.” This definition gives employers further direction when analyzing employee behavior and investigating complaints. Employers must act quickly after receiving a complaint of sexual harassment. Employers should always take sexual harassment complaints seriously and investigate allegations immediately. However, in light of the recent #MeToo movement and influx of sexual harassment claims, Senate Bill 45 (Tex. Lab. Code § 21.142) appears to intensify the pressure on employers to look for concerning employee activity and act swiftly upon receipt of a sexual harassment complaint. The new law specifically provides that an unlawful employment practice occurs if an employee is subjected to sexual harassment and the “employer or employer’s agents or supervisors (1) know or should have known that the conduct constituting sexual harassment was occurring; and (2) fail to take immediate and appropriate corrective action.” Although immediate and appropriate corrective action is not defined, which makes it difficult to predict how the courts will interpret and apply the new language, employers should avoid any delays in addressing concerns and complaints. Employers often rely on the Faragher-Ellerth affirmative defense to defend their actions by establishing that the company took reasonable care to prevent harassing behavior and prompt corrective action when presented with complaints about a supervisor in federal court. This new Texas law appears to codify those expectations of employers and their agents in the workplace. Employees have more time to file charges of discrimination for sexual harassment. Historically, Texas employees who believe they have been subjected to unlawful employment practices (e.g., discrimination based on race, nationality, color, age, etc. or retaliation) have 180 days from the date of the alleged event to file a charge of discrimination with the Texas Workforce Commission. House Bill 21 (Tex. Lab. Code § 21.201(g)) extends that time to 300 days. The change in Texas is consistent with the broader national shift to expand protections against sexual harassment. In short, the speed and accuracy of investigations, as well as effective remedial measures, are more important than ever. Employers should also review their employee handbooks, policies, and procedures to ensure the language appropriately reflects the new laws. Polsinelli attorneys will continue to monitor further developments related to these amendments and provide updates. If you have any questions about the changes, including the potential impact on your company’s operations, contact your Polsinelli attorney.

On January 1, 2022, Public Act 102-0358, an amendment to the Illinois Freedom to Work Act will take effect and impact all non-compete agreements entered into prospectively. The law will ban employers from using non-compete agreements with employees earning less than $75,000 and from using non-solicitation agreements with employees earning less than $45,000. The law will not affect non-disclosure agreements entered with employees, regardless of income level. The law also requires an employer to provide a 14-day period to consider a non-compete or non-solicitation agreement and to advise the employee to consult with an attorney before entering into such an agreement. Illinois’ new law continues a recent trend limiting the scope of restrictive covenants, including, for example, at the federal level and in the District of Columbia. Employers should consult their Polsinelli attorney for assistance in reviewing and updating their template restrictive covenant agreements to ensure that after January 1, 2022 they enter enforceable agreements.

Walkouts by non-union employees have increased sharply over the past couple of years. “Walkout Wednesdays” have become a favorite organizing strategy for labor unions. Unions, like SEIU, make a significant investment of their resources to galvanize non-union employees’ support and participation in walkouts. The National Labor Relations Act provides protections to employees who engage in protests with coworkers related to their own working conditions, as well as actions taken to support employees of another employer. Workers at a fast-food company with locations worldwide have staged walkouts to have their employer work collaboratively with them to create a plan to stamp out sexual harassment. The Labor Board would likely find that the walkout was protected because the company had the ability to effectuate the change employees demanded: the employer can choose to work with employees to eliminate sexual harassment in its workplaces. Employee rights in this area are not unlimited, however. Employees who stage a walkout to support a political cause or other concern over which the employer has no control, may find that the Act does not protect them from discipline or discharge. Consider a walkout by employees to protest existing health disparities in a city—how non-whites in general and African Americans in particular are at higher risk for conditions like cardiovascular disease and diabetes—as well as access to healthcare disparities. Does the employer have the ability to affect solutions to these healthcare matters? In many situations, this issue is beyond the control of a single employer and employees who stage a walkout may well be outside the protection of federal labor law if they are disciplined or discharged for their participation in the walkout. Likewise, employees who are represented by a union may not have the right to engage in walkouts during working time. Many collective bargaining agreements prohibit employees from engaging in any work stoppage during the term of the agreement. But, if the CBA has expired, or it does not prohibit work stoppages, the unionized employees may have the same right to engage in a walkout as non-union employees. Employers are well-advised to work with experienced labor counsel to plan for, or respond to, walkouts, or other types of job action employees may take.

On July 29, 2021, the Biden Administration announced a COVID-19 vaccination mandate for certain employees of federal government contractors. The announcement, released in a Fact Sheet, imposes new safety protocols on the federal contractor workforce, but does not flesh out key details, including the specific responsibilities of federal contractors to obtain and ensure compliance. The Fact Sheet states that every “onsite” employee of a federal contractor “will be asked to attest to their COVID-19 vaccination status.” If an employee does not attest to being fully vaccinated, then that employee will be required to wear a mask on the job “no matter their geographic location,” physically distance from other employees and visitors, and comply with weekly or twice weekly screening testing requirements. Unvaccinated employees would also be subject to restrictions on official travel. The Fact Sheet also states that the administration is “directing” that “similar standards” be applied “to all federal contractors.” The Fact Sheet leaves many key questions unanswered, including: Who are the “onsite” contractor employees subject to the new mandate? Presumably the mandate applies to contractor employees who work on federal premises, but the Fact Sheet does not explicitly define this category. What obligations do federal contractors have to determine the vaccination status of their employees or conduct the required testing? What specific physical distancing protocols will unvaccinated employees be required to follow and who is responsible for ensuring compliance? Which agency will be issuing further requirements for “all federal contractors,” and under what statutory authority? Federal contractors, especially those whose employees work on federal premises, should begin immediately preparing to ensure their personnel comply with the new requirements. Contractors may wish to begin taking action to determine the vaccination status of their workforces and encourage employees to obtain a COVID-19 vaccination. Because vaccination issues are rapidly developing and involve complex determinations under the Americans with Disabilities Act, Genetic Information Non-Discrimination Act, and other federal and state laws, contractors should consult with counsel about these requirements. Polsinelli will continue to update the contractor community as additional details are announced.

On Monday, July 26, 2021, a group of nearly 60 major medical organizations, including the American Medical Association, American Nursing Association, American Pharmacists Association, American College of Physicians, American College of Preventative Medicine, and American Public Health Association advocated for all health care and long-term care employers to require their employees to be vaccinated against COVID-19. This joint statement, comes in the wake of the recent surge in “highly contagious variants, including the Delta variant, and significant numbers of unvaccinated people, COVID-19 cases, hospitalizations and deaths” in the United States. The joint statement also stressed the ethical obligations for health care workers, “[Vaccination] is the logical fulfillment of the ethical commitment of all health care workers to put patients as well as residents of long-term care facilities first and take all steps necessary to ensure their health and well-being.” In recent weeks, an increasing number of hospitals and health care systems have announced COVID-19 vaccination requirements for their employees. On July 21, 2021, the American Hospital Association released a statement urging all health care workers to be fully vaccinated. The statementencourages health care systems to take certain steps to facilitate an orderly roll out of any mandatory policy, including: Providing exemptions to the policy for medical reasons and accommodations (e.g., a sincerely held religious belief); Following relevant CDC guidelines, OSHA requirements, and other applicable state or federal law and/or guidelines regarding the use of personal protective equipment and other infection control practices for unvaccinated workers who have been granted an exemption or accommodation; Implementing the policy in compliance with applicable local and state laws; Following CDC and FDA guidelines on how to determine which workers are eligible and should be prioritized for vaccination; Monitoring data relating to FDA authorized or approved vaccines that are being distributed; Providing workers with information about the efficacy and safety of the COVID-19 vaccine in an effort to encourage voluntary vaccinations; and Offering flexibility in workers’ schedules to permit time for workers to receive the vaccine and recover from potential side effects. Also announced on Monday, the Department of Veterans Affairs became the first federal agency to mandate all 115,000 of its frontline health care workers who work in Veterans Health Administration facilities, visit VHA facilities, or provide direct care to those VA serves—including physicians, dentists, podiatrists, optometrists, registered nurses, physician assistants, expanded-function dental auxiliaries, and chiropractors—to be vaccinated against COVID-19. Each employee will have eight (8) weeks to be fully vaccinated.

On July 26, 2021, California Governor Gavin Newsom announced that California state workers, workers in health care, and workers in high-risk congregate setting will be required to provide proof of Covid-19 vaccination or undergo weekly testing and wear appropriate PPE.  The publication issued by the Governor’s office, which is not considered a “mandate” (yet) has been published as a “measure” to encourage State Employees and Health Care workers to get vaccinated.  The measure applies to public and private facilities. The new directive will apply to three large groups of employees. First, the measure will apply to California state employees. The new policy for state workers will take effect August 2. The measure provides that testing will be “phased in over the next few weeks.” Second, the measure will apply to employees working at high-risk congregate settings. By way of example (but not limitation) the measure identifies adult and senior residential facilities, homeless shelters, and jails as “high-risk congregate settings.” Employees working at these locations will be subject to the measure beginning August 9. Third, the measure will apply to “health care workers.” Of note, the publication from the Governor separately references “health care workers” and employees at “health care facilities.”  This suggests that health care workers who work outside of health care facilities would be subject to the measure. Unfortunately, Governor Newsom’s directive does not define the term “health care workers.” In previous orders, California’s Public Health Office designated the Health Care and Public Health Sector as a “large, diverse, and open [sector], spanning both the public and private sectors.” (https://covid19.ca.gov/essential-workforce/). In its definition of “health care providers” it included the following:   physicians, dentists, psychologists, mid-level practitioners, nurses, assistants, and aids; infection control and quality assurance personnel; pharmacists; physical, respiratory, speech and occupational therapists and assistants; social workers and providers serving individuals with disabilities including developmental disabilities; optometrists; speech pathologists; chiropractors; diagnostic and therapeutic technicians; and radiology technologists. (https://covid19.ca.gov/essential-workforce/ - (1) Health Care/Public Health – Essential Workforce, Paragraph 1.)  This group of professionals will likely be considered “health care workers” for purpose of the measure.  Additionally, all employees working at health care facilities will likely be subject to the measure as well. California’s Public Health Office also includes within its Health Care and Public Health sector employees working in emergency medical services, inpatient and outpatient care workers, home care workers, and residential and community-based providers. (https://covid19.ca.gov/essential-workforce/ - (1) Health Care/Public Health – Essential Workforce, Paragraph 2.) Of note, while these employees are considered part of the Health Care and Public Health sector, they are not listed under the heading for “health care providers.”  As a result, it is unclear, at this time, whether this latter sect of employees, that do not work at health care facilities, as well as other type of employees listed within the Health Care and Public Health sector, will be considered “health care workers” for purpose of the measure. Employers of health care workers and congregate facilities will be required to follow the measure effective August 9.  Additionally, health care facilities will have until August 23 to come into full compliance. For a full copy of Governor’s Newsom’s statement please click here . Polsinelli attorneys will continue to provide updates, should and when further guidance is published.

On July 21, 2021, the Department of Labor issued a Notice of Proposed Rulemaking to implement President Biden’s Executive Order 14026 increasing the minimum wage for certain employees of federal government contractors and subcontractors to $15.00 per hour. As expected, the proposed regulations are generally consistent with the regulations previously issued by the Obama administration in 2014 to implement President Obama’s increase in the federal contractor minimum wage. Under the proposed regulations, the minimum wage for workers performing services on or in connection with a federal contract will increase to $15.00 per hour as of January 22, 2022, with inflation-based adjustments on January 1 of 2023 and each successive year. The increased minimum wage applies to contracts that are entered, renewed, or extended (including extensions through the government’s exercise of an option) after January 30, 2022. The regulations provide contractors with a short grace period, however, as contracts entered into between January 30, 2022 and March 30, 2022 that result from pre-January 30, 2022 solicitations are not covered by the regulations until the contract is renewed or extended. The regulations include a minimum wage of $10.50 per hour for tipped employees, but the ability to take a tip credit will phase out on January 1, 2024, after which point tipped employees will be entitled to the same minimum wage as other covered employees. Notable exclusions from the increased minimum wage include federal grants, contracts with Indian Tribes, procurement contracts excluded from the Davis-Bacon Act, service contracts excluded from the Service Contract Act, contracts that are not performed in the United States, and contracts for manufacturing or furnishing materials, supplies, articles, or equipment to the federal government. As in the previous regulations, employees perform services “on” a federal contract when they directly perform the services called for by the contract, which should be a relatively straightforward determination. Employees perform services “in connection with” a federal contract when they perform services that are not required by the contract, but are necessary to the performance of the contract’s services. Common examples of services “in connection with” a contract include custodial, security, or maintenance services at facilities that perform work on federal contracts. Workers who only perform “in connection with” a federal contract are not subject to the minimum wage requirement if they perform less than 20% of their work time on performing services “in connection with” the contract. Both prime contractors and subcontractors of any tier are covered by the higher minimum wage. The regulations do not create a private right of action for employees to sue contractors for unpaid wages, but instead provide for the Department of Labor’s Wage and Hour Division to investigate complaints of violations. Employers are prohibited from retaliating against employees who make such complaints. Possible sanctions for failing to pay the increased minimum wage include withholding of contract payments from the prime contractor, the termination of contracts, and debarment from federal contracting.