On December 17, the U.S. Court of Appeals for the Sixth Circuit dissolved the stay order that prohibited enforcement of the Occupational Safety and Health Administration COVID-19 Emergency Temporary Standard (ETS). The rule paves the way for OSHA to begin implementing its vaccine-or-testing standard. OSHA announced Friday evening that it will begin enforcing the majority of the ETS starting January 10, 2022, and begin enforcing the testing requirement that applies to unvaccinated workers starting February 9.

The ETS, which requires employers with 100 or more employees to implement a policy requiring employees be fully vaccinated for COVID-19 or be subject to weekly testing and mask wearing standards, was originally issued on November 5, 2021, but was rendered unenforceable on November 6 pursuant to a nationwide stay order. Many business groups, unions, and others filed challenges to the ETS across most federal circuit courts, and a multi-circuit “lottery” was held to determine which court would hear the combined challenges. The Sixth Circuit “won” the multi-circuit lottery and a three-judge panel decided the case.
Continue Reading Sixth Circuit Re-Activates OSHA’s Private Employer Vaccinate-or-Test Rule; New Enforcement Deadlines Set

On Thursday, November 4, the Occupational Safety and Health Administration (OSHA) published an emergency temporary standard (ETS) making good on President Biden’s pledge to require private employers with 100 or more employees to implement vaccination-or-testing mandates for their employees.
Continue Reading OSHA Publishes Emergency Temporary Standard Requiring Vaccine-or-Testing for Employers With 100+ Employees

On September 9, the White House announced Executive Order 14042, which requires covered federal contracts to include a clause mandating compliance with guidance that had yet to be issued by the Safer Federal Workforce Task Force (Task Force). On Friday, the Task Force released its much-anticipated guidance.
Continue Reading Task Force Guidance Issued for Federal Contractor Vaccination Mandate

Yesterday, the White House announced numerous new measures to combat the pandemic and the contagious Delta variant that impact employers. One key change is a new regulation to be issued by the Occupational Safety and Health Administration (OSHA), which is part of the U.S. Department of Labor (DOL), that will require companies with 100 or more employees to ensure their workforces are either fully vaccinated or test negative for COVID-19 at least once a week. President Biden also announced two new Executive Orders creating vaccine mandates for federal employees and employees of federal government contractors.
Continue Reading White House Announces Vaccination Mandate or Weekly Testing for Large Employers, and Vaccination Mandate for Federal Employees and Contractors

On May 28, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) updated its guidance on employer vaccination policies in the form of additional Q&As. Some of the Q&As relating to mandatory vaccination policies, accommodation, and confidentiality supplement and clarify EEOC guidance that was originally issued on these topics on December 16, 2020. Other Q&As are new as of May 28, 2021, including those relating to employer-provided incentives for receiving a COVID-19 vaccine.

The Guidance addresses COVID vaccine issues raised under the Americans with Disabilities Act (ADA), Genetic Information Nondiscrimination Act (GINA), and Title VII (including the Pregnancy Discrimination Act). The EEOC expressly states that it is “beyond the EEOC’s jurisdiction” to discuss the legal implications of Emergency Use Authorization (EAU) by the FDA, and whether or how that may affect employer-mandated vaccine policies. The EEOC directs readers to the FDA’s EUA page for more information about the legal implications of the FDA’s EUA for vaccines.

Key provisions of the Guidance are summarized below. All reference to vaccines or vaccinations in this publication refer to the COVID-19 vaccine.
Continue Reading EEOC Updates Vaccine Guidance: Accommodation, Confidentiality, Employer Incentives, and More

Under a new presidential executive order, employers may not provide any employee training that teaches employees “cannot and should not attempt to treat others without respect to race or sex” if the employer is a federal contractor.

Following a September 4, 2020 White House memorandum reprimanding federal agencies for holding “divisive, un-American” instruction on systemic racism, on September 22 Donald Trump signed Executive Order 13950, “Executive Order on Combating Race and Sex Stereotyping,” which prohibits federal agencies from “promot[ing] race or sex stereotyping in the Federal workforce or in the Uniformed Services.” The Order goes much farther than that, however, by providing that federal contractors “will not be permitted to inculcate such views in their employees.”
Continue Reading New Executive Order Prohibits “Divisive” Diversity and Inclusion Training for Federal Contractors

Earlier today, the U.S. Supreme Court held that discrimination based on sexual orientation or transgender status is sex discrimination in violation of Title VII of the Civil Rights Act of 1964. The Court’s opinion in Bostock v. Clayton County, Georgia resolves a circuit split and makes adverse employment actions against gay, lesbian, or transgender people illegal across the nation.

Continue Reading Supreme Court: Title VII Prohibits Discrimination Based on Sexual Orientation, Transgender Status

The U.S. Equal Employment Opportunity Commission (EEOC) continues to update its guidance on the interplay of COVID-related issues and the Americans with Disabilities Act (ADA).

The EEOC added new FAQs on April 9 (view our summary) addressing issues of confidentiality, reasonable accommodation, hiring, and harassment. On April 17 and April 23, the EEOC added additional FAQs addressing numerous topics, including the permissibility of widespread COVID-19 testing for employees entering the workplace and additional topics involving requests for accommodations during the pandemic and other issues.
Continue Reading EEOC Updates ADA/COVID Guidance Allowing for COVID Virus Testing and “End Dates” to Some Accommodations

The U.S. Equal Employment Opportunity Commission (EEOC) has issued updated FAQs on the Americans with Disabilities Act (ADA) issues relating to confidentiality, reasonable accommodation, hiring, and other pandemic-related topics. The U.S. Department of Labor Occupational Safety and Health Division (OSHA) also remains active, and has updated employer recordkeeping and reporting requirements regarding workplace transmissions of COVID-19.
Continue Reading EEOC and OSHA Update Prior Guidance on COVID-Related ADA Issues and Workplace Transmission Reporting

On April 1, the U.S. Department of Labor (DOL) issued a press release announcing its publication of a Final Rule on the paid sick leave requirements and family leave requirements of the Families First Coronavirus Response Act (FFCRA). Relying on the “good cause” exception of the Administrative Procedure Act (APA), the DOL bypassed the generally required notice and public comment provision before issuing the Final Rule.

The Final Rule supplements and clarifies the multiple FFCRA Q&A publications the DOL has issued over the past several weeks. On April 3, after the Final Rule was released, the DOL updated its prior Q&A guidance incorporating content from the Final Rule. The updated April 3 guidance is available here. This is the most current and comprehensive set of FFCRA Q&As published to date by the DOL. (Our previous summaries of the DOL’s March 25 and March 28 FFCRA Q&As are available here and here, though readers should note that the Q&As contained in those links have now been updated via the April 3 updated Q&As.)
Continue Reading DOL Issues Final Rule and Additional Guidance on FFCRA Leave and Pay Requirements