Murphy, Hesse, Toomey & Lehane, LLP is delighted to announce the addition of three new associate attorneys, Blair Wigney, Katherine Blum and Mariem Marquetti. Ms. Blum and Ms. Marquetti will primarily be assisting in the firm’s Labor & Employment and Litigation practices, while Ms. Wigney will be focused on the firm’s Corporate & Business and Benefits practices.
The Supreme Court Blocks OSHA Vaccination and Testing Requirements but Upholds HHS Vaccination Requirements
On January 13, 2022, the United States Supreme Court issued a “stay” that prevents OSHA’s Emergency Temporary Standard (“ETS”) from taking effect for the time being. On the same day, the Supreme Court also issued a “stay” that allows the Health and Human Services (“HHS”) mandatory COVID-19 vaccination rule for all Medicare and Medicaid funded facilities to go into effect. Given that both of these rulings involved applications for preliminary or emergency relief, neither of them represents the final word on the enforceability of the vaccine and/or testing mandates, and additional litigation is a certainty as the lower courts further evaluate the legality of the mandates.
OSHA ETS Vaccination and Testing Requirements Enforcement To Begin on January 10, 2022 and February 9, 2022
On December 17, 2021, the United States Court of Appeals for the Sixth Circuit lifted a stay on enforcement of the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS), which was issued on November 4, 2021.
In October, the U.S. Equal Employment Opportunity Commission (EEOC) updated its COVID-19 Technical Assistance, providing additional guidance for employers on the interaction between COVID-19 vaccine workplace policies and federal equal employment opportunity (EEO) laws. Here are key updates to the Technical Assistance:
OSHA ISSUES EMERGENCY TEMPORARY STANDARD WHICH REQUIRES A VACCINE MANDATE POLICY WITH AN EXCEPTION FOR WEEKLY TESTING
OSHA issued its much-anticipated Emergency Temporary Standard (ETS) late last week on Thursday, November 4, 2021. In general, the ETS requires employers to establish, implement, and enforce a mandatory COVID-19 vaccination policy. The ETS provides a limited exemption from the vaccine mandate which permits an employer to establish a policy which allows employees to choose either vaccination or regular weekly COVID-19 testing and wear a face covering in the workplace as an alternative to vaccination.
The Department of Health and Human Services’ (HHS) Office for Civil Rights (OCR) recently published a new guidance on disclosures and requests for information regarding a person’s receipt of the COVID-19 vaccination in relation to the Health Insurance Portability and Accountability Act (more commonly known as HIPAA). As employers continue to develop COVID-19 vaccination policies in the workplace, this guidance may be important.
On September 29, 2021, the day before it was set to expire, the Massachusetts legislature amended the COVID-19 Emergency Paid Sick Leave Act (MA EPSL), extending it until April 1, 2022 or the exhaustion of $75 million in program funds, whichever is earlier. Additionally, the amended MA EPSL expanded the reasons for which employees can use sick leave to include “to care for a family member who needs to obtain or recover from a COVID-19 immunization.”
In recent weeks, a growing conversation has unfolded about COVID-19 vaccine mandates in the workplace. This conversation was further thrust into the spotlight last night, on September 9, 2021, when President Biden outlined a far-reaching COVID-19 Action Plan, which particularly seeks vast vaccine mandates in the workplace.
For employers, implementing a vaccine policy can be intimidating given the variety of state and federal regulators who have issued guidance on the subject. Additionally, a COVID-19 vaccine mandate may carry an extra threat of workplace polarization of which many employers are understandably wary. The purpose of this Client Alert is to summarily outline a toolkit of federal guidance, including President Biden’s COVID-19 Action Plan, that an employer may consult, in part, when considering whether to implement a COVID-19 vaccine program in their workplace. Please note, all numbered headings below are hyperlinked.
OSHA’s Issues New COVID-19 Emergency Temporary Standards for Healthcare Industry and Additional COVID-19 Guidance for Other Industries
On June 10, 2021, the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) unveiled its long-awaited emergency temporary standard (“ETS”) for curbing health and safety risks associated with COVID-19. Significantly, the ETS has a limited reach as it is required for only the healthcare industry with some exceptions. Unlike previous OSHA guidance, the ETS is a mandatory rule for covered employers.
In a decision that is sure to draw the attention of students, parents, and school administrators, on Wednesday, June 23, 2021, the United Stated Supreme Court held that a Pennsylvania school district violated a student’s First Amendment rights when it disciplined her for posting vulgar language and gestures on social media from an off-campus location. While finding in favor of the student based on the particular facts of the case, the Court also addressed potential circumstances where a student’s off-campus conduct could be grounds for discipline, thereby leaving open the possibility that future cases could be decided differently.
Attorney Felicia Vasudevan, a partner at Murphy, Hesse, Toomey & Lehane, LLP, received a favorable decision on behalf of her client, Marshfield Public Schools. The Plaintiff appealed the district court’s judgement that upheld a decision of the Massachusetts Bureau of Special Education Appeals (“BSEA”). However, as the notice was filed more than 30 days after entry, the First Circuit ultimately dismissed the appeal for being untimely. The Plaintiff also appealed the district court’s order, denying her motion to vacate. Read More
Following our Alert from March 16, 2023, Civility is Dead – The Supreme Court Rules Municipal Control of Public Speak Limited to Reasonable Time/Place/Manner Restrictions, which discussed the holding to the Supreme Judicial Court’s decision in Barron v. Kolenda and the Town of Southborough (SJC-13284), we promised to bring you more detailed guidance on developing a Public Speak policy for your public body or municipality. The Barron case involved a constitutional challenge to the Town of Southborough’s public comment policy, which attempted to impose a code of civility on members of the public who participated in public comment before public bodies. In Barron, the court interpreted the state constitution to mean that public bodies may request, but not require, that public commentators be respectful and courteous. Instead, a public body may set restrictions on reasonable time, place, and manner comments to ensure that the meeting retains an orderly and peaceable manner.