News

OSHA has just announced that it is withdrawing this ETS effective immediately. Although OSHA is withdrawing the ETS as an enforceable emergency temporary standard, OSHA is not withdrawing the ETS to the extent that it serves as a “proposed” rule; instead OSHA has indicated that it will prioritize its resources to focus on a permanent COVID-19 Healthcare Standard. Notwithstanding the withdrawal of the ETS for large employers, OSHA continues to strongly encourage the vaccination of workers against the continuing dangers posed by COVID-19 in the workplace.

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.

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 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.

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.

On May 28, 2021, Governor Baker signed into law an Act providing for Massachusetts COVID-19 emergency paid sick leave, the text of which can be found at https://malegislature.gov/Bills/192/H3702/House/Bill/Text. This law took effect immediately on May 28, 2021. The law directs federal funds received by the Commonwealth in response to the COVID-19 public health emergency into the new COVID-19 Emergency Paid Sick Leave Fund. A website has been established regarding this new leave, which can be found here – https://www.mass.gov/info-details/covid-19-temporary-emergency-paid-sick-leave-program.

The Equal Employment Opportunity Commission (“EEOC”) announced that the EEO-1 Component 1 data collection for 2019 and 2020 will open on Monday, April 26, 2021. Private-sector employers with 100 or more employees and federal contractors with fifty (50) or more employees are legally obligated to file EEO-1 reports that consist of data regarding the demographic representation of their workforce. In 2020, the EEOC delayed the opening of the 2019 EEO-1 Component data collection due to the COVID-19 pandemic. However, employers may begin filing their EEO-1 data beginning on Monday, April 26, 2021.

On March 11, 2021, President Biden signed the American Rescue Plan Act of 2021 (the “Act” or “ARPA”), which is a $1.9 trillion economic stimulus package. A stimulus package of this size will undoubtedly have economic ripple effects in every corner of American society. This Client Alert highlights the support ARPA provides for individuals and workers as a result of the ongoing COVID-19 pandemic.

On Friday, September 11, 2020, the Department of Labor issued revisions to the temporary rule regarding the federal Families First Coronavirus Response Act (“FFCRA”). Those revisions can be found here – https://www.federalregister.gov/documents/2020/09/16/2020-20351/paid-leave-under-the-families-first-coronavirus-response-act. The revisions take effect on September 16, 2020.

On Friday, the IRS released long-awaited guidance on President Trump’s previous Executive Memorandum to Treasury Secretary Stephen Mnuchin directing him to defer the collection of the employee portion of Social Security employee payroll taxes.

On July 21, 2020, the National Labor Relations Board (“the Board”) changed its analysis towards an employee’s use of verbally offensive behavior in the context of protected activity under Section 7 of the National Labor Relations Act (“the Act” or “NLRA”) in the following decision: General Motors, LLC, No. 14-CA-197985, 369 NLRB No. 127 (2020).

On June 15, 2020, the Supreme Court of the United States handed down a historic 6-3 decision authored by Justice Neil Gorsuch, in which the Court held that employers cannot discriminate against an individual on the basis of the individual’s sexual orientation or gender identity. This case, Bostock v. Clayton County, was a consolidation of three cases, involving two gay men, who were terminated based on their sexual orientation, and one transgender woman, who was terminated based on her gender identity.

The coronavirus and its effects are likely to have an impact on workers’ compensation claims. Two of the most common questions that have been raised regarding COVID-19 and workers’ compensation are addressed below, including compensation for employees who contract COVID-19 at work and employees who are injured while working from home.

The recent need to make difficult and sometimes time-sensitive decisions during the pandemic has raised the question of bargaining and other obligations under federal and state labor law. Whether or not you have a unionized workforce, the National Labor Relations Act (“NLRA” or the “Act”) for covered private sector employers and Massachusetts state law, M.G.L. c. 150E, for public sector employers in Massachusetts, protects employees’ rights to engage in protected concerted activities. Moreover, for those employers with organized workforces, employers are generally obligated to bargain before making changes to employees’ wages, hours, working conditions, or other mandatory subjects of bargaining. Failure to do so may constitute an unlawful unilateral change and result in a finding that the employer committed an unfair labor practice.

This client alert highlights the law’s provisions addressing permits, permit applications, and public hearings. The law defines “permit” broadly to include permits, variances, special permits, licenses, amendments, extensions, and other approvals by a permit granting authority. A “permit granting authority” is also defined broadly to include any local, district, county, or regional official or multi-member body authorized to issue a permit.

The Families First Coronavirus Relief Act (FFCRA) as well as the Coronavirus Aid, Relief, and Economic Security Act (CARES) have delivered some much needed relief to employers hit hard by the COVID-19 virus and associated work stoppages. These Acts allow employers to obtain relief from wage payments against the payroll taxes they otherwise owe.

April 1, 2020 Effective Date

On Tuesday, March 24, 2020, the U.S. Department of Labor (DOL) announced that the effective date of the Families First Coronavirus Response Act (FFCRA) is April 1, 2020. This means that the paid leave provisions contained in both the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act apply to leave taken between April 1, 2020 and December 31, 2020.

Last week, the coronavirus disease 2019 (COVID-19) was designated as a global pandemic. It continues to disrupt our workplace communities and our community at large. To assist employers in continuing to plan for and respond to COVID-19, the U.S. Department of Labor issued guidance on COVID-19 and the Occupational Safety and Health Act (OSHA), the Fair Labor Standards Act (FLSA), and the Family and Medical Leave Act (FMLA). This edition of the Client Alert will focus on the OSHA guidance. We will issue subsequent Client Alerts which will cover the FLSA and the FMLA guidance.

The coronavirus disease 2019 (COVID-19) is creating increasing concern in workplace communities and in our community at large. Each day infections spread to new parts of the world and the U.S. The number of cases and deaths continues to rise in the U.S. Johns Hopkins University, which tracks the number of cases and deaths globally, reports that the virus is in over half of the U.S. states, with 755 cases and 26 deaths.