In an interview with Government Executive, Patrick Dennison provides his initial reaction to the much-anticipated Emergency Temporary Standard (ETS), which provides workplace safety guidance directed at healthcare employers dealing with COVID-19. Patrick explains that “there were no major surprises” as “many of the requirements [of the ETS] were included in COVID-19 standards already implemented in states like California and Virginia.”

To read the article visit Government Executive.

Many businesses have developed policies on providing reasonable accommodations to employees who refuse to get a COVID-19 vaccine for religious or disability-related…

When a female employee is subjected to derogatory comments about her breasts, a reasonable jury could find that those remarks were unlawfully based on her gender. But the 6th U.S. Circuit Court of Appeals ruled for the employer in this case because the harassment was deemed not severe or pervasive.

As the COVID-19 pandemic upended workers’ lives, employers responded by providing an array of new benefits. Many employers are planning to keep those offerings after the pandemic ends.
http://feedproxy.google.com/~r/shrm/hrnews/~3/nel_PXfPvEo/benefits-added-during-pandemic-likely-to-remain.aspx

Invoking horrific images of Nazi war crimes and employees allegedly being used as “human guinea pigs,” a new round of lawsuits are challenging employers’ rights to enforce mandatory COVID-19 vaccination requirements in Texas, North Carolina, and New York. While their litigation has attracted considerable media attention and fuels strong emotions, these plaintiffs still appear to be falling well short of articulating viable legal claims. But the controversy and negative attention make it easy to understand why, despite overwhelming scientific evidence regarding the safety and effectiveness of vaccines, a vast majority of employers have chosen to encourage but not require their employees to be vaccinated. In a nutshell, what are these new lawsuits alleging and why are they simply more inflammatory than legally sound?

The Lawsuits

The new litigation is similar in many respects to the first two lawsuits challenging mandatory vaccine policies that we previously told you about filed in New Mexico and Los Angeles. The new Texas case filed against Houston Methodist in Texas garnered momentum after an initially anonymous nurse went to the media to express her opposition to the health system’s decision to require all of its employees to get vaccinated by early June. After more media coverage and an on-line crowdfunding effort, the nurse found an attorney and over 100 more employees to join her in a lawsuit against Methodist. The suit argues that Methodist is forcing “human experimentation,” references the post-World War II Nuremberg Trial that led to the creation of the Nuremberg Code which bans forced medical experimentation, and accuses the health system of placing profits ahead of people.

The plaintiffs’ actual legal claims are that they were or will be terminated for refusing to perform illegal acts – none of which are identified or occurred – and that requiring employees to be vaccinated violates public policy. Neither claim appears to have any validity, as explained below. Methodist has repeatedly explained that its vaccine requirement is based on what it views as a sacred duty to do whatever it can to protect its patients, who are among the most vulnerable people in the community – about 99% of its employees have either been vaccinated or received an exemption in accord with guidance issued by the Equal Employment Opportunity Commission (EEOC). Methodist has required its employees to receive annual flu shots since 2009.

The North Carolina lawsuit challenges the Durham County Sherriff’s Department’s decision to require vaccinations. Again referring to the COVID-19 vaccine as experimental, the plaintiff’s argument is also grounded in public policy, relying on a portion of the federal statute stating that recipients of vaccines issued under the Food and Drug Administration’s (FDA) Emergency Use Authorization (EUA) must be informed of “the option to accept or refuse” its administration. Plaintiff does not, however, deal with the obvious implications of remainder of the applicable section, which goes on to state that recipients must also be informed of “the consequences, if any, of refusing administration of the product.”

The New York suit was filed by a hospitality employee alleging, among other things, that being forced to take the COVID-19 vaccine by his employer amounts to discrimination on the basis of religion. However, his lawsuit fails to explain how or why taking the vaccine would violate his religious beliefs. Like the other lawsuits mentioned above, his complaint also contains broad allegations based on the premise that the vaccine is experimental and cannot be required by employers.     

What is the Applicable Law?

As mentioned above, the current vaccines have all been issued in the United States pursuant to the FDA’s EUA process. The applicable statute indeed recognizes, as the name makes clear, that an EUA may be issued when the Health and Human Services Secretary determines that there is a public health emergency or the potential for such an emergency exists. This occurred in 2020, which permitted vaccines to later be distributed and used in the U.S.

Under EUA provisions, recipients of the product – in this case, the COVID-19 vaccines – must be informed of, among other things, the potential benefits and risks of its use and the extent to which such benefits are unknown. They must also be informed of their right to refuse administration – and, critically, of the consequences of refusing administration. This language seems to make it very clear that while no person can literally be forced to take the vaccine, there can indeed be consequences for refusing to take it. In the case of an at-will employee, consequences may include being barred from the workplace or having their employment terminated.  

At-will employment means that either the employee or employer can end the employment relationship at any time for any reason not prohibited by law. Texas, North Carolina, and New York are among the vast majority of states where the employment relationship is presumed to be at-will. Thus, if an employee refuses to be vaccinated, the employer has the legal right to terminate the relationship. The great weight of legal authority indicates that the employers in these lawsuits are well within their rights to enforce a policy that requires COVID-19 vaccinations, just as they have long had the authority to require other vaccinations, including the flu shot.  

Even in an at-will relationship, employees still have protections if they are unable to be vaccinated for certain medical or religious reasons. The employees, however, must confer interactively with their employer to determine whether their circumstances qualify for an exemption and whether a reasonable accommodation can be provided. In the above-referenced lawsuits, there is no evidence that the employers failed in fulfilling these obligations. In facts, Methodist’s willingness to accommodate these situations has been well-publicizing during the past several weeks. The EEOC has also clearly stated that employers may inquire into employee’s vaccination status and seek proof for vaccination

From a legal standpoint, the issues appear to be fairly straightforward. Employers may require vaccines if they decide that is the right decision for them, but they must provide for accommodation requests on the basis of certain medical or religious reasons. Employees have the right to refuse to be vaccinated, but if they do, at-will employers have the right to terminate their employment. 

To determine whether a policy requiring vaccinations is right for your workplace, many considerations are important, including the emotions, potential distractions, politicization, and likely misunderstandings associated with the COVID-19 vaccines and their EUA status that will arise in the workplace.

Are the Vaccines Really “Experimental”?

Another important topic in terms of assessing legal risks and evaluating the impact of your policy decisions on your workforce is addressing the characterization of vaccines as “experimental.” As with all things COVID, the issues are evolving, complicated, and intense. But the findings of scientists and applicable agencies are helpful in clearing away considerable uncertainty.

A good starting point in addressing the question of whether the vaccines are experimental begins with examining their composition. Messenger RNA (mRNA) vaccines are among the first developed and approved for distribution in the U.S. But these types of vaccines were in development for decades prior to the COVID-19 pandemic. No scientific steps were skipped in their development – the vaccine has been through thorough standard safety testing, including Phases I – III of a clinical trial, which found them to be safe and effective. 

Under emergency conditions, such as during this pandemic, the manufacturer can apply for Emergency Use Authorization (EUA) by the FDA, a regulatory pathway to allow for use of this vaccine during an emergency. This allows a company to produce and distribute the vaccine while simultaneously applying for full FDA approval, instead of waiting for full approval to begin manufacturing and distributing the vaccine. This helps to get the vaccine to the population faster to address the emergent need to stop the high rate of transmissions and infections of the virus. 

According to UNC Health, a primary difference between full FDA licensure, compared with a vaccine issued pursuant to EUA, is that production of the vaccine can begin much sooner under the EUA process. The Centers for Disease Control and Prevention (CDC) says the vaccines are safe and effective, having been rigorously tested. The vaccine cannot give the recipient COVID-19 and it does not in any way alter a person’s DNA.

In short, the vaccines are not “experimental” or the result of a short-circuited development and testing process. The underlying science and knowledge has been under development for many years and the data regarding their effectiveness and safety is consistently positive.

What Should Employers Do?

Last month, the CDC issued guidance that allows fully vaccinated people to dispense with masking and social distancing among other things. You should familiarize yourself with this guidance – and our seven-step blueprint to take your workplace mask-less – regardless of whether you mandate the vaccine among your workforce. The Occupational Safety and Health Administration (OSHA) appears to agree with that guidance as it pertains to the workplace, and its subsequent guidance provides employers with three clear options for proceeding.

Nevertheless, controversy, strong feelings, and media attention seem likely to ensue where companies decide to require vaccinations. Employers should keep these factors in mind and consult your Fisher Phillips attorney as you consider what options may be best for your workplace. If you decide to proceed with a mandatory vaccine policy, you should consult our list of top seven considerations to take into account before doing so, and coordinate with your Fisher Phillips attorney.

We will continue to monitor developments related to vaccines and related workplace questions that arise. Make sure you are subscribed to Fisher Phillips’ Insight system to get the most up-to-date information. If you have questions about how to ensure that your vaccine policies comply with workplace and other applicable laws, visit our Vaccine Resource Center for Employers.

On the heels of Florida’s highly publicized COVID-19 vaccine passport ban, Texas Governor Greg Abbott announced on Tuesday via Twitter that he too had signed a law banning Texas businesses from requiring vaccine passports under certain circumstances. Passed during the concluding days of this year’s legislative session, Senate Bill 968 mirrors an earlier Executive Order by the governor. It includes language banning businesses in the state from requiring proof of the vaccine from their customers but does not mention employees and employers. This is obviously an important distinction for Texas employers, particularly in view of the well-publicized vaccination requirement that Houston Methodist is enforcing among with workforce. Below are two main takeaways that every employer should know about the Texas vaccine passport ban.

  1. Business Cannot Require Customers to Provide Proof of Vaccination for Entry or Service
    Texas Bill 968 prohibits Texas businesses from requiring a customer to provide documentation certifying the customer’s COVID-19 vaccination or post-transmission recovery status to gain entry or receive services. Business that violate this restriction will be ineligible to receive state grants or state contracts. The new law also allows (but does not require) state agencies that oversee certain business sectors to make compliance with the state law a condition of granting licenses or permits. Unlike Florida’s new law, the Texas law does not provide for a monetary fine.

    The Texas law does not limit a company’s right to continue offering incentives to the vaccinated public, so long as customers voluntarily provide their health information. The law further bans state entities from issuing documentation certifying COVID-19 vaccination to third parties for reasons other than health care.

  2. Business Can – and Should – Continue to Implement COVID-19 Safety Protocols in Accordance with Federal and State Law
    The law specifically states that it may not be construed to restrict a business from implementing COVID-19 screening and infection control protocols in accordance with state and federal law to protect the public health. Thus, employers should continue to look to the EEOC, CDC, and other state agencies for guidance regarding employee vaccination status.

    The EEOC expressly permits you to request vaccination status from your employees. The CDC announced last month that only people who are fully vaccinated may follow relaxed COVID-19 protocols. Despite its earlier guidance stating that employers should not distinguish between vaccinated and unvaccinated employees, OSHA has acknowledged, without elaborating, the CDC’s subsequent guidance and is referring employers to it.

  • For a summary of the CDC’s guidance on scrapping mask mandates for fully vaccinated workers and a seven-step blueprint for employers to overcome risks and hurdles, click here.
  • For a summary of the three options that employers have in light of OSHA’s subsequent unmasking announcement, click here.

Conclusion

We will continue to monitor developments related to the COVID-19 vaccines and related workplace questions that arise. Make sure you are subscribed to Fisher Phillips’ Insight system to get the most up-to-date information. If you have questions about how to ensure that your vaccine policies comply with workplace and other applicable laws, visit our Vaccine Resource Center for Employers or contact your Fisher Phillips attorney or any of the authors of this Insight.

In this podcast, Littler shareholders Bruce Sarchet and Bob Long discuss a common feature of many American workplaces: the “Open Door” policy. But adopting such a policy is just the first step. Bruce and Bob discuss the actual application of these policies, providing examples where managers and supervisors not only actively listen to employees, but take concrete action based on what they hear, and working together with employees to create win-win solutions.
  

https://www.littler.com/publication-press/publication/open-door-may-not-be-enough

As India continues to battle a devastating second wave of COVID-19 infections, some organizations are seeking ways to provide emotional support to their employees. Many are enlisting employee assistance programs (EAPs) for the first time.
http://feedproxy.google.com/~r/shrm/hrnews/~3/RAZEvLt3bmA/india-eaps-are-helping-employees.aspx

Oregon lawmakers recently passed legislation that will create additional hurdles for employers who are seeking to protect their interests through noncompete agreements. Senate Bill 169, one of the three noncompete bills introduced during this legislative session, will significantly modify Oregon’s noncompete statute by (1) reducing the maximum length of a restricted period from 18 months to 12 months and (2) with limited exception, requiring that the employee subject to the noncompete be earning a six-figure income. Importantly, however, these requirements do not apply to covenants that restrict the solicitation of clients or employees. The new law was signed into effect on May 21 and will govern agreements that are executed on or after January 1, 2022. What do employers need to know about this development?

What Is Changing?

The Oregon noncompete statute, ORS 653.295, currently provides that a noncompete agreement is “voidable and may not be enforced by a court of this state” unless:

  • The employer advises the employee in a written employment offer at least two weeks before the first day of employment that a noncompete is required, or the noncompete is executed upon a bona fide advancement;
  • The employee is exempt from Oregon minimum wage and overtime laws;
  • The employer has a protectable interest, such as when an employee has access to trade secrets or competitively sensitive confidential information;
  • With limited exception, the employee makes more than the median family income for a family of four as determined by the U.S. Census Bureau;
  • The duration of the noncompetition does not exceed 18 months; and
  • The employer provides a signed, written copy of the noncompete agreement to the employee within 30 days after the termination of employment.

The new law modifies the statute in the following ways:

  • The “voidable and may not be enforced by a court of this state” language is replaced by the more restrictive “void and unenforceable”;
  • The maximum length of a restricted period is reduced to 12 months; and
  • With limited exception, an employee must earn at least $100,533 (which will be adjusted annually for inflation) instead of using the Census Bureau’s data as an income basis.

The new law also tightens the definition of a noncompete agreement. The statute currently defines a noncompete as an agreement that is “written or oral, express or implied.” However, the definition will become limited to written agreements, with the “oral, express or implied” language being eliminated from the statute.

What Prompted This?

The new amendments are consistent with Oregon’s continued efforts to tighten the leash on noncompete agreements. In 2015, the legislature reduced the maximum length of a noncompete period from 24 months to 18 months; in 2017, it banned noncompete agreements for home care workers; and in 2019, it passed a bill that required an employer to provide the employee with a copy of the agreement within 30 days after the termination of employment.

What Should Employers Be Doing?

Employers in Oregon, and throughout the United States, should remain proactive in order to ensure that their noncompete agreements remain enforceable. You should consider taking the following steps:

  • Stay abreast of the developments in noncompete legislation in the jurisdictions where you operate and assess the legislation’s impact on your business. Consideration should be given to issues such as:
  • Whether a noncompete can be enforced against specific employees, based on factors such as income level and occupation;
  • Whether the temporal scope of your noncompetition period is permissible; and
  • Whether you are required to take any additional steps in order to preserve the enforceability of the agreement, such as providing advance notice of the agreement to a new employee, or providing the agreement to a departing employee within a specified time period following the termination of employment.
  • If your noncompete agreements are now or later become unenforceable, determine whether the law permits you to have existing employees enter into new agreements. For example, some states require employers to provide something more than continued employment in exchange for a new agreement from an existing employee.
  • Avoid uniform contracts and tailor your noncompete agreements for the specific jurisdictions in which they are being used.

We’ll monitor events and provide updates as warranted, so make sure you are signed up to receive Insights directly to your inbox to receive the latest information. If you have any questions regarding your organization’s restrictive covenant agreements, please consult your Fisher Phillips attorney, the author of this Insight, any attorney in our Portland office, or any attorney in the Employee Defection and Trade Secrets practice group.

In celebration of Pride Month, Whitney Williams (L.A. – Century City) and Michael Hui (San Francisco) discuss their personal experiences growing up gay in the Black and Asian American communities, what their similar upbringings have taught them about being an attorney, and how the Littler Pride affinity group is an important part of their lives at the firm.
  

https://www.littler.com/publication-press/publication/sharing-space-conversation-about-intersectionality