OSHA has put employers on notice that they cannot succumb to COVID-19 burnout, and must remain vigilant when it comes to worker safety protocol. The United States Occupational Safety and Health Administration has recently increased the issuance of citations against employers for failing to following COVID-19 health and safety guidelines. Employers should be aware of this increase in enforcement and take steps to actively comply with all OSHA rules and guidance relating to COVID-19, including both the adoption and enforcement of safety rules in the workplace. In October 2021 alone OSHA has issued at least three citations to employers based on the failure to comply with OSHA’s general duty clause. The citations reprimanded the employers for ignoring safety requirements and failing to furnish a place of employment free from recognized hazards that are causing or likely to cause death or serious physical harm to employees.
Employers are being inundated with employee requests for exemptions, not just from mandatory vaccination policies, but also from policies requiring regular COVID-19 testing. How do employers square their duty to provide a safe workplace with the duty to try to accommodate employees who refuse even to be tested? And can they avoid some of the headaches by asking applicants about their vaccination status up front? We look at both of those questions in the context of EEOC guidance updated October 25, 2021 and offer some tips.
Employers implementing mandatory COVID-19 vaccine policies are facing an avalanche of requests for exemptions as religious accommodations, far more than for medical exemptions. Fortunately, while employers are generally obligated to explore accommodations for requests based on a sincerely held religious belief, they are not necessarily obligated to grant exemptions.
Federal contractors covered by President Biden’s recent Executive Order 14042 must ensure that covered employees are fully vaccinated for COVID-19 no later than December 8, 2021, subject to applicable exceptions, pursuant to new Guidance published by the Safer Federal Workforce Task Force (Task Force). The Guidance was issued pursuant to President Biden’s COVID-19 Action Plan and Executive Order 14042, which we blogged about last month. All new covered contracts entered into on or after October 15, 2021 must incorporate the terms of the Guidance.
Florida has imposed a substantial new reporting requirement on employers and businesses who utilize independent contractors. Businesses need to be prepared; the new requirement takes effect October 1, 2021.
Employers in California may not condition employment on entering into an arbitration agreement, but at the moment, it appears they may continue to enforce such agreements. The situation is muddled as a result of a federal appellate court ruling blocking a 2019 California law that made it illegal for an employer to condition employment or “any employment-related benefit” on entering into an arbitration agreement. On September 15, 2021, the Ninth Circuit Court of Appeals, which reviews the decisions of federal district courts in the nine westernmost states, including California, vacated a district court injunction blocking the 2019 law, known as Assembly Bill (AB) 51. The U.S. Chamber of Commerce, in concert with six other business groups, filed the suit shortly before it was set to take effect on January 1, 2020 seeking to have the law struck down on the grounds that it is preempted by the Federal Arbitration Act (FAA). The district court entered a temporary restraining order on December 30, 2019, and later a preliminary injunction on February 7, 2020, blocking the law from taking effect. The state then appealed.
Even though the COVID-19 pandemic and its impact on the workplace has dominated the headlines recently, employers should be careful not to delay investigating non-pandemic-related complaints—particularly those of harassment. Failing to promptly investigate and correct harassing behavior can be costly. Based on a recent federal appellate court ruling, a month between complaint and action may not be prompt enough.
Private employers with 100 or more employees will be required to ensure their employees are either “fully vaccinated” or provide proof of a negative COVID-19 test at least once a week, under President Biden’s new six-prong COVID-19 Action Plan (the “Plan”) announced September 9, 2021. The Plan also includes vaccination requirements for employees of healthcare facilities receiving Medicare or Medicaid reimbursements, federal employees and contractors, and certain schools and programs.
Employers and plans are reminded that they must provide a COBRA subsidy expiration notice no later than September 15, 2021, pursuant to the American Rescue Plan Act of 2021 (ARPA). ARPA had included some new COBRA obligations for both employers and participants. In particular, as noted in our previous posts, ARPA established a 100 percent COBRA premium subsidy that applied for a coverage period running from April 1, 2021, through September 30, 2021. That subsidy period is now coming to a close.
Enforcement begins soon of New York City’s new executive order requiring certain indoor establishments to verify that staff and patrons have received at least one dose of the COVID-19 vaccine before entering the establishment. The executive order took effect on August 17 and inspectors will begin enforcing its requirements until September 13. This mandate is the first of its kind in the country.