Happy Thanksgiving and the Many Things for Which We Are Thankful – 2021 EditionMany of us are understandably anxious to put another tumultuous year of the pandemic behind us. But before we sit down at the table to fill our plates and bellies to overflowing to celebrate the holiday, we can all find some bright, shining blessings in what has otherwise been another difficult year. We are grateful to have weathered another year of hurricanes, wildfires, a global pandemic, economic turmoil, and protests concerning racial equality and social justice. We are hopeful for booster shots and a healthy and safe workforce, social justice, and the ability to gather with friends and family in person. We are also grateful for the following legal stuff:

1. The Ability to Mandate COVID-19 Vaccinations

This time last year we were hoping for effective vaccines to become available to combat the COVID-19 pandemic. Once they were available under emergency use authorization, the looming question became can employers require their employees to roll up their sleeves? The answer to that question is an emphatic “yes.” The EEOC stated in its guidance about COVID-19 and the ADA and other EEO laws that federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be fully vaccinated against COVID-19, subject to the reasonable accommodation provisions of Title VII and the ADA. The EEOC went on to provide useful examples of reasonable accommodations that might be appropriate for unvaccinated workers, including wearing a face mask, working at a social distance from coworkers or non-employees, working a modified shift, getting periodic tests for COVID-19, telework or, where available and feasible, reassignment. We are grateful to have clarity about employers’ rights to enforce vaccine mandates should they so choose as the appropriate course for their workforce.

2. Judicial Oversight to Check the Power of Administrative Agencies

By now, we are all at least vaguely familiar with the fact that President Biden’s Path Out of the Pandemic Plan includes provisions for mandatory vaccines for  federal workers and contractors, entities that receive Medicare and Medicaid funding, and large employers with 100 or more employees. Earlier this month, OSHA issued its 490-page COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS), and just days later, the Fifth Circuit Court of Appeals stayed the mandate citing concerns over “grave statutory and constitutional issues with the Mandate.” The Fifth Circuit’s temporary stay became a permanent stay with this opinion, and then Congress’ process for judicial review of OSHA standards such as the ETS kicked into gear. The process involves consolidating all of the lawsuits that have been filed challenging the mandate in one court of appeals and then the Judicial Panel on Multidistrict Litigation randomly designates one circuit from among those where lawsuits have been filed. That process has taken place with regard to OSHA’s ETS, and the Sixth Circuit won the lottery and therefore will decide the ultimate fate of OSHA’s mandatory vaccination or weekly testing mandate.

Nevertheless, if you are subject to the federal contractor vaccination mandate or you are a healthcare employer subject to the CMS mandate, nothing about the legal status of OSHA’s ETS changes that. OSHA has confirmed that it is suspending activities related to implementing and enforcing the ETS pending future developments in the litigation, although it remains confident in its authority to protect workers in emergencies. We are grateful Congress has oversight to ensure our administrative agencies are operating within their well-defined power and authority and that courts can intervene as appropriate.

3. More and More Workers Are Becoming Fully Vaccinated

More and more employees are becoming vaccinated due largely to the growing number of vaccine mandates for workers returning to the office. In fact, CNN is reporting that the White House is expected to announce that 95% of the federal workforce is in compliance with the Biden administration’s vaccine mandate. A senior administrative official has stated 90% of workers have received at least one shot and the other 5% have submitted requests for accommodation that have either already been approved or are pending. We are grateful that more vaccinated workers mean safer, more productive workforces.

4. Employers Are Winning Court Battles on Vaccine Issues

United Airlines, a federal contractor, requires all employees to be vaccinated against COVID-19 unless the employee is granted a religious or medical exemption. Unvaccinated workers who have been granted an exemption are placed on unpaid leave, and that practice prompted a lawsuit by those affected workers. A group of United employees sued the airline over its policy that puts unvaccinated workers on unpaid leave if they have been granted religious or medical exemptions to its vaccine mandate arguing the policy would cause them irreparable harm. The employees petitioned the court to issue an injunction blocking the policy. A judge out of the Northern District of Texas expressed sympathy with the workers but nevertheless concluded they had not demonstrated irreparable harm, a required element to injunctive relief. The court, nevertheless, chastised United for how it handled some employee concerns, writing that the company’s vaccine mandate “reflects an apathy, if not antipathy, for many of its employees’ concerns and a dearth of toleration for those expressing diversity of thought.” Although it sounds like United has some work to do with regard to how it enforces its policy and handles the sincere concerns of its workers, we are grateful that our courts are supporting employers who have been forced to make some very tough and unpopular decisions to keep their businesses going.

5. Updates to the EEOC’s Technical Assistance Regarding Retaliation

Earlier this month, the EEOC announced updates to its COVID-19 Technical Assistance to include additional information on retaliation. Per the EEOC press release, “the updates explain and clarify the rights of employees and job applicants who believe they suffered retaliation for protected activities under the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act, or other employment discrimination laws. The technical assistance explains how these rights are balanced against employers’ needs to enforce COVID-19 health and safety protocols.” Among the “key guidance” that the EEOC spotlights, “the ADA prohibits not only retaliation for protected EEO activity, but also ‘interference’ with an individual’s exercise of ADA rights.” The updates are specifically designed to address the novel retaliation issues raised by the pandemic, but they affirm employers always have the right to discipline employees for legitimate reasons, and that is something to be grateful for.

6. Employees Really Do Have to Return Completed FMLA Paperwork Timely

In a recent federal appellate court decision, the court concluded a worker was not entitled to FMLA leave when she failed to return a completed recertification within 15 days, and when she subsequently returned paperwork that was incomplete due to her doctor not filling out the forms correctly. Even after being given a reasonable amount of time to correct the deficiency, the worker failed to fix the problem, and therefore the court concluded she was not entitled to FMLA leave. This case serves as a reminder that employers have a duty to properly document FMLA leave and employees likewise have a duty to submit their paperwork completely and timely, otherwise they are not legally entitled to the leave.

7. Clarity that “On the Basis of Sex” Includes Sexual Orientation and Gender Identity and Applies to Bathroom Use

Last year, we wrote about a landmark decision, Bostock v. Clayton County, wherein the U.S. Supreme Court held that Title VII of the Civil Rights Act of 1964 protects employees against discrimination because of their sexual orientation or gender identity. That decision did not specifically address bathroom use, which left many organizations struggling with the issue. The EEOC has concluded that “employers may not deny an employee equal access to a bathroom, locker room, or shower that corresponds to the employee’s gender identity.” This is also the trend we are seeing in how most courts have addressed this issue. For example, in this case, an Illinois court concluded that an employer violated the law by denying a transgender woman use of the women’s bathroom. In reaching its decision, the court rejected the employer’s arguments that (1) a unisex bathroom was available (the court likened this argument to the “separate, but equal” approach rejected in Brown v. Board of Education), and (2) the ban was necessary to protect other women (the court noted there was no evidence the transgendered employee’s use of the women’s bathroom would pose a safety risk to other women.)

8. Workers Can Be Terminated for Lying About Discrimination/Harassment

Can workers be disciplined for lying about violations of your anti-discrimination or anti-harassment policies? The answer is, yes they can. In this case out of South Carolina, the plaintiff, a former employee, made a claim for retaliation after being fired by a fast food restaurant. The plaintiff alleged another male employee groped and/or grabbed her and inappropriately touched her. After an investigation that included reviewing hours of footage from eight cameras, none of which showed visible instances of groping, grabbing or other inappropriate touching, and interviewing several other employees in addition to the complainant and the accused, the employer fired the plaintiff for lying, which led to the lawsuit for retaliation. The court concluded in cases like these where there is a “he said, she said” set of facts, and the employer believes that the complainant has made a false discrimination complaint, the employer is not liable for retaliation so long as it took the adverse action because of a good-faith belief that the employee made false accusations. The employer can lawfully make a choice between the conflicting versions — that is, to accept one as true and to reject one as fictitious — at least as long as the choice is an honest choice. So, you don’t have to be a flawless, walking-and-talking lie detector! Now that is something to be grateful for.

9. All of Our Readers!

We are so grateful to all of our readers, followers, and subscribers. We do this for each of you, and we appreciate hearing back from you about what is helpful or when you send our articles along to someone else in your network. Continue to read, like, follow, and retweet us! Now… go eat, drink and be merry with your families!

Happy Thanksgiving from the Labor and Employment Insights blog team!

New Tennessee Law Prohibits Many Employers from Requiring Proof of COVID-19 Vaccination Status, Creates Exemption Process for Federal ContractorsEmployers in Tennessee need to hold off on requiring COVID-19 vaccine proof from employees because they might run afoul of a newly minted law. On November 12, Tennessee Gov. Bill Lee signed an omnibus COVID-19 bill into law and as a result, most Tennessee employers cannot mandate their employees and applicants show proof of COVID-19 vaccination status. We’ve previously blogged about this law here.

Many Employers May Not Compel Employees or Applicants to Prove Vaccination Status

The new Tennessee law states that a “private business . . . shall not compel or otherwise take an adverse action against a person to compel the person to provide proof of vaccination if the person objects to receiving a COVID-19 vaccine for any reason.”

The law effectively prohibits Tennessee employers from (1) compelling employees or applicants who object to receiving a COVID-19 vaccine to show proof of vaccination status, or (2) taking an “adverse action” against an employee or applicant who fails to do so. Accordingly, covered employers need to ensure that their hiring, firing, and disciplinary process does not turn on the failure of an individual to show proof of vaccine status if that individual objects to receiving the vaccine “for any reason.”

The law does not apply to:

  • Any school
  • Certain Medicare or Medicaid certified providers subject to contrary federal requirements
  • Assisted living facilities
  • Homes for the aged
  • Nursing homes
  • Residential hospice facilities

Law Creates an Exemption Process for Federal Contractors

The new law creates an exemption process for federal contractors required to comply with President Biden’s Executive Order mandating that employees working on a covered contract be vaccinated. If a federal government contractor or subcontractor can demonstrate that complying with the new Tennessee law would result in the loss of federal funding, they may file for an exemption with the Tennessee Comptroller of the Treasury. The Tennessee Comptroller of the Treasury has established a website through which federal contractors or subcontractors can request an exemption.

The Playing Field Changes Daily

It is important for employers to stay informed in this area that is literally changing by the day. And if it’s important for employers to stay up to date, that means it is important for us to do the same. In that spirit we’ll be sure to keep you updated as things develop.

 

*Myles Chaney, a co-author of this blog post, is not an attorney.
Application for Admission to Tennessee Bar Pending
Practicing Pursuant to Rule 7, Section 10.04 of the Tennessee Supreme Court Rules

OSHA Suspends ETS Enforcement in Wake of Fifth Circuit’s Latest Jab at Vaccine Rule, But Future Remains UncertainThe saga of the Occupational Safety and Health Administration’s (OSHA) newly announced COVID-19 Emergency Temporary Standard (ETS) continues. As you know, the ETS requires employers with 100 or more employees to mandate vaccines or weekly testing (with limited exceptions). OSHA has since announced that it has “suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.” The announcement results from the Fifth Circuit’s  22-page opinion continuing its stay of the ETS. The Fifth Circuit’s order foreshadows the legal challenges to come.

The Fifth Circuit’s Order

In the order, the Fifth Circuit accuses the current administration of shoe-horning the desire for a federal vaccine mandate into the best, but ill-fitting, vehicle the administration could find – an OSHA ETS. The court points out that OSHA’s authority to establish emergency temporary standards is “an extraordinary power that is to be delicately exercised” and criticizes the ETS vaccine rule as “a one-size-fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces.” The opinion calls the ETS the

rare government pronouncement that is both overinclusive (applying to employers and employees in virtually all industries and workplaces in America, with little attempt to account for the obvious differences between the risks facing, say, a security guard on a lonely night shift, and a meatpacker working shoulder to shoulder in a cramped warehouse) and underinclusive (purporting to save employees with 99 or more coworkers from a “grave danger” in the workplace, while making no attempt to shield employees with 98 or fewer coworkers from the very same threat).

The Fifth Circuit questions whether OSHA has adequately shown a “grave danger” warranting the issuance of an ETS and states that it is “dubious” as to whether the rule will pass “constitutional muster.”

While the stay is welcome news to many employers, keep in mind that the Fifth Circuit is only one of 12 federal circuits and the ultimate decision may not line up with this opinion.

What happens next?

With OSHA standing down for now and the Fifth Circuit’s stay firmly in place – and other challenges pending in 11 of 12 federal circuit courts of appeal – the cases will be consolidated and assigned to one circuit court, chosen randomly via lottery. As we noted in a previous post, federal law requires this lottery process when “multiple petitions for review of a single agency order are filed in at least two courts of appeals within ten days after issuance of the order.” The lottery is set for November 16, 2021. It’s not a Powerball drawing but it is significant.

What should Employers Covered by the OSHA ETS do?

While the ETS’ future is up in the air for now, this does not mean employers should halt plans for compliance. As noted above, the Fifth Circuit’s opinion may not be indicative of how another circuit may ultimately rule. The announcement notes that “OSHA remains confident in its authority to protect workers in emergencies,” so we should not assume that OSHA is giving up on the ETS. Cautious employers may want to move forward with plans for compliance while also keeping a close eye on whatever circuit is chosen by the lottery.

CMS and Federal Contractor Mandate Not Paused

Employers who are federal contractors or health care providers should not make decisions based on OSHA’s announcement and the Fifth Circuit’s order. Those employers are subject to different (although similar) federal mandates – the Federal Contractor Mandate and the CMS Medicare Omnibus Staff Vaccine Mandate Interim Final Rule.  Both of those governmental mandates are currently being challenged, but at the moment have not been halted by any federal court action.