On January 13, 2021, the United States Supreme Court blocked the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (the ETS) regarding COVID-19 vaccination and testing in the workplace. The ETS generally required covered employers to have either a mandatory COVID-19 vaccination policy or a policy where unvaccinated employees undergo weekly testing and wear a face covering at work. Following a December 17, 2021, ruling by the Sixth Circuit Court of Appeals, the ETS was scheduled to be enforced by OSHA, in part, on January 10, with its testing requirements to be enforced starting February 9. In light of the U.S. Supreme Court’s ruling today, that will not be the case.

What Was the Majority’s Reasoning for Blocking the ETS?

The majority of the U.S. Supreme Court found that the Occupational Safety and Health Act does not authorize the U.S. Secretary of Labor to issue a vaccine mandate. It described the ETS instead as a “broad public health” measure. That said, the majority acknowledged that OSHA has authority “to regulate occupation-specific risks related to COVID-19.” For the example, the majority signaled there would be no issue with a vaccine mandate by OSHA “[w]here the virus poses a special danger because of the particular features of an employee’s job or workplace . . . . [,}” such as with respect to “researchers who work with the COVID-19 virus” or workers “in particularly crowded or cramped environments.” But it drew a line between those sorts of workplaces and “the everyday risk of contracting COVID-19 that all face.” Specifically, the majority stated that “[r]equiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the” category of regulating “public health more broadly.”

But, Wait, the OSHA ETS Isn’t a Mandatory Vaccination Requirement, Right?

The majority of the Court dismissed what it called an “exception” from a mandatory vaccination policy requirement that permits employers to have a vaccine-or-test-and-mask policy instead. In that regard the majority generally observed that “employers are not required to offer [the vaccine-or-test-and-mask] option,” that the ETS “purports to pre-empt state laws to the contrary,” and that the ETS permits employers to remove unvaccinated employees from the workplace if they fail to get tested and wear face coverings. The dissenting opinion pointed out that the majority “obscures [employers’ policy] choice by insistently calling the policy a vaccine mandate.” That is, the ETS is not a vaccine mandate, according to the dissent. But, the majority appears to have disagreed with that observation.

What Do Employers Do Now?

OSHA still requires employers to provide a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” So, employers are feeling whipsawed by the multiple developments regarding OSHA’s ETS when figuring out how to keep their workers safe. At this time though, employers do not need to comply with the ETS, unless and until the U.S. Supreme Court’s ruling today is terminated and a different outcome and judgment is sent down.

Employers are, however, still permitted to institute their own workplace safety policies, which would include mandatory vaccination policies or vaccine-or-test-and-mask policies, unless state law otherwise prohibits the same—like Texas does with respect to mandatory vaccination policies. The Equal Employment Opportunity Commission has generally recognized that employers can require all employees to get the COVID-19 vaccine, provided that the employer complies with all applicable employment laws in doing so (e.g., provides reasonable accommodations for covered disabilities under the ADA and for sincerely held religious beliefs under Title VII). Many employers have done just that, even before OSHA’s ETS. Those policies are safe for now—again, absent a state law to the contrary.

As always, it behooves employers to stay abreast of CDC and OSHA guidance related to COVID-19 risks in the workplace, as it is a rapidly changing virus with risks that touch everyone, as the Supreme Court recognized. Employers should therefore be sure to involve senior manager, human resources, and appropriate legal counsel in complying with government guidance and regulations—and wading through the maze of court orders pertaining to the same. In this way, an employer’s approach to COVID-19 in the workplace will be consistent and deliberate.


Contact

Taylor White  |  214.745.5175  |  twhite@winstead.com


Disclaimer: Content contained within this article provides information on general legal issues and is not intended to provide advice on any specific legal matter or factual situation. This information is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. Readers should not act upon this information without seeking professional counsel.

The Biden administration on Nov. 4 released a Fact Sheet announcing the details of its Occupational Safety and Health Administration (OSHA) and Center for Medicare and Medicaid Services (CMS) COVID-19 vaccination mandates.

OSHA is issuing a Vaccination and Testing Emergency Temporary Standard (ETS) that requires employers with 100 or more employees to get their employees vaccinated by Jan. 4. Unvaccinated employees will have to produce a negative test on at least a weekly basis.

CMS is requiring workers at healthcare facilities that participate in Medicare or Medicaid to be fully vaccinated by Jan. 4. The rule covers approximately 76,000 healthcare facilities and more than 17 million healthcare workers.

The Fact Sheet also announced that the Dec. 8 deadline for compliance with Executive Order 14042’s vaccination mandate for federal contractors would be extended to Jan. 4. The guidelines released Sept. 24 by the Biden administration paints federal contractors with a broad brush, stating that employees who work in human resources, billing, legal review and perform work “in connection with a Federal Government contract” must be vaccinated.

Continue Reading The Federal Government Vaccine Mandate’s Impact on Colleges and Universities

Winstead PC Shareholders Lori Oliphant and Taylor White recently discussed Wellness Programs as Alternatives to Employer Vaccine Mandates in a new Bloomberg article.

The article can be read here: Wellness Programs as Alternative to Employer Vaccine Mandates

Join Winstead attorney, Taylor White along with BOMA as they discuss bringing the future of medical real estate into focus. On Tuesday,  November 2, Taylor will participate on the panel titled ‘The Financial, Legal and Operational Impact of the new SOHA Guidelines.’

Date: Monday, November 1 – Wednesday, November 3, 2021
Location: Omni Dallas Hotel

The Financial, Legal and Operational Impact of the new SOHA Guidelines
Date: Tuesday, November 2, 2021
Time: 1:45-2:45 p.m.

As a direct result of President Biden’s Executive Order regarding the safety and wellbeing of American healthcare workers, the Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (“ETS”) on June 10, 2021 that was effective upon publication on June 21, 2021. The ETS applies to many patient care settings including general hospitals; trauma centers; specialty hospitals; teaching hospitals; and ambulatory care facilities. The ETS also applies to physician offices, dental offices, surgery centers, specialty care clinics, and urgent care centers. While many healthcare providers have voluntarily implemented COVID-19 prevention methods throughout the pandemic, the ETS establishes mandatory, nationwide standards that will be federally enforced. Our panelists will provide insight on how OSHA’s ETS has impacted the healthcare industry to date, specifically focusing on the operational, financial, and legal implications.

Speakers: Donald Stevens, Vice President, Facilities Management at Baylor Scott and White health Systems; Taylor White, Shareholder at Winstead PC; Gary Rizzato RTG AIA, CHFM, CHFSP, CHSP, RESE, Corporate Director, Facility Management at Realty Trust Group

Who Should Attend:

Hospital, Healthcare System & Physician Group Real Estate Executives, Title Insurers, Attorneys & Accountants.

Register

View agenda | View session descriptions and speakers

Winstead hosted a webinar entitled “Returning to Work: Employer Considerations.” The event, which was presented by Winstead shareholder Taylor E. White, explored the challenges associated with returning to an in-person setting in the wake of the ongoing COVID-19 pandemic. During the webinar, Taylor discussed how organizations can minimize legal exposure and the best practices for coming back to the office, among a number of other topics. Here are some of the key takeaways from the event:

  • Before returning to the workplace, it is imperative for companies to have a plan of action. Organizations should ensure that they consult government guidance when creating it. Additionally, they should think about establishing a return-to-work committee to help ensure a smooth transition back to the workplace and manage the implementation of the plan.
  • It is important to take the concerns of employees into consideration before returning to the office. There are so many fears employees have before coming back to work in an in-person setting, including contracting COVID-19, potentially getting their families and friends sick, and spreading the virus within their communities. The concerns of the workforce need to be considered and organizations need to take account for and address various personal factors from age-related concerns of a potentially at-risk employee to the needs of those who have underlying medical conditions or sincerely held religious beliefs impacting the application of safety protocols to them.
  • As noted, employees are navigating many fears as it relates to coming back into work—and this means communication is key. Organizations need to be transparent and keep their employees up to date with the latest information about COVD-19. This includes sharing government fact sheets and resources, and providing information about employee assistance programs and the logistics about the company’s return-to-work plan.
  • When it comes to returning to the office, organizations need to understand the ins-and-outs of OSHA’s COVID-19 enforcement. To address this, they should assess the risk of returning to the office for their employees, provide education and training, and require both proper sanitation of the workplace and appropriate personal protective equipment. Further, there should be a hierarchy of administrative and engineering controls established to mitigate COVID-19 hazards in different work areas, and a plan to address safety-related complaints. Organizations should be sure document their efforts to be compliant with OSHA requirements and be mindful of new requirements.
  • Organizations returning to in-office work also need to be compliant with the Americans with Disabilities Act. The three main requirements employers need to keep in mind are (1) not discriminating or retaliating against employees with covered disabilities, (2) providing reasonable accommodations for employees with covered disabilities, except in cases where doing so would constitute an undue hardship, and (3) ensuring that any inquiries about medical conditions are related to an employee’s job and “consistent with business necessity.”
  • Right now, you are hearing about more and more organizations that are mandating vaccinations as a prerequisite for returning to the workplace. It is important to keep in mind that employer vaccine mandates are permitted, but companies also need to accommodate those who have covered disabilities or sincerely held religious beliefs impacting vaccinations.
  • With employees returning to an in-person work setting, there will naturally be issues that arise centered around leave. For organizations, it is critical to keep in mind that there are federal, state, and local laws that need to be complied with as it relates to granting employee leave.

View On-Demand

Aug 31, 2021 | 12:00 PM CT

In this presentation, we will discuss legal risks and best practices to mitigate the same associated with returning to in-office work amidst the ongoing COVID-19 pandemic. More specifically, we will analyze potential pitfalls, requirements, and considerations for employers under the Occupational Safety and Health Administration regulations, Americans with Disabilities Act, paid leave laws, and other government guidance. In addition, we will cover how employers can plan properly prior to making the decision to return to work and communicate with employees regarding the same, as well as discuss hot topics relevant to this important issue, such as mandatory vaccination policies, corporate events, discrimination by association, and indemnification.

Speaker: Taylor White, Shareholder 

Register Here. 

Houston’s Fourteenth Court of Appeals recently held that a claim for attorney’s fees under the Uniform Declaratory Judgments Act (“UDJA”) is not preempted by the Texas Covenants Not to Compete Act where the action brought under the UDJA seeks to declare a covenant not to compete unenforceable.

In Traina v. Hargrove & Associates Inc. a former employee filed suit against his former employer seeking a declaratory judgment that a covenant not to compete he entered into with his employer is unenforceable.  The trial court granted summary judgment in favor of the employer that the employment agreement was enforceable, reformed the covenant to limit the scope of restrictions, and declined to award attorney’s fees under the UDJA.  The trial court’s ruling stated that fees under the UDJA were preempted by the Covenants Not to Compete Act.

After affirming the trial court’s determination of the enforceability of the covenant, the court of appeals determined that since the employee’s UDJA claim sought to declare the covenant unenforceable, his claim for attorney’s fees was not preempted.  The court noted: “The only claim brought in this case is Traina’s claim for a declaration that the covenant is unenforceable.  Under such circumstances, this case does not qualify as “an action to enforce a covenant not to compete” under the plain meaning of the statute.” (emphasis own).  The court concludes that since there was no claim to enforce the covenant not to compete, UDJA attorney’s fees are not preempted by section 15.52 of the Business and Commerce Code.  The court remanded the proceedings to determine the issue of whether the former employee is entitled to attorney’s fees.

Continue Reading Houston Appeals Court Reminds Employers Why They Should Review the Enforceability of Their Non-Compete Agreements with Employees

Join Labor & Employment Shareholder Taylor White for a live 90-minute CLE webinar titled ‘Construction Employers and OSHA Violations: Willful Violations, Civil and Criminal Penalties.’ This CLE webinar will provide construction counsel with advice based on recent decisions by the Occupational Safety and Health Review Commission that found contractors were liable for hazardous working conditions and subject to civil and criminal penalties for these worker safety violations. The panel will address best practices and advise on steps construction clients should take to mitigate future risk and establish procedures and oversight.

Date: Wednesday, August 11
Time:
1:00pm-2:30pm EDT / 12:00 – 1:30pm CT

Description

The consequences to the construction industry stemming from worker safety violations are not limited to civil monetary penalties and specific hazard abatement requirements levied by the Occupational Safety and Health Administration (OSHA). Violations can lead to criminal liability under the Occupational Safety and Health Act (OSH Act).

Construction counsel must advise clients on what constitutes a criminal penalty when any employer willfully violates an OSHA standard and an employee dies as a result. OSHA’s issuance of a “willful” citation following an employee fatality is not sufficient to establish criminal liability because willfulness must be proven “beyond a reasonable doubt” in the criminal proceedings, along with other necessary elements. If proven, the employer may be fined and/or face imprisonment.

Counsel should guide clients in reviewing and revising operations and safety manuals to ensure they are up-to-date with current protocols and advise clients to address known or obvious workplace hazards and employee safety complaints and concerns. Counsel must train company management on handling OSHA inspections and investigations before an OSHA investigation and involving counsel if OSHA arrives for an inspection or investigation.

Listen as our expert construction panel discusses the state of current OSHA inspections and investigations and how the contractual relationships between the various project members, including prime contractors, subcontractors, construction managers, and professional consultants, can allocate or even shift primary responsibility from one party to another.

Outline

  • Standards established by OSHA
  • OSH Act
    • Willful violations and criminal penalties
  • COVID-19 safety and health procedures
  • Consequences of increased onsite inspections
  • Allocation of risk in contracts

Benefits

The panel will review these and other key issues:

  • How can construction counsel limit liability for clients facing OSHA investigations and/or OSH Act violations?
  • How can employers ensure worksites are complying with all of OSHA’s COVID-19 safety and health procedures?
  • As OSHA increases onsite inspections, what should construction industry employers expect?
  • How can counsel shift liability for safety violations via construction contracts?

 

Register Here: Construction Employers and OSHA Violations | CLE Webinar | Strafford (straffordpub.com)

 

Winstead PC Shareholder Taylor White published his column in Texas Lawyer about labor and employment issues and trending topics. The article is titled ‘Employers Get Clarity on Mandatory COVID-19 Vaccination Policies in the Workplace.’ The article is below:

For months, employers and employment attorneys have navigated a number of considerations and governmental guidance documents regarding COVID-19 vaccinations in the workplace. A key question has been whether employers can implement policies requiring employees entering the workplace to be vaccinated against COVID-19. Notwithstanding the business consideration of whether such policies should be implemented, the consensus among practitioners has been that mandatory COVID-19 vaccinations in the workplace are legally permissible. Two recent developments have generally confirmed that consensus: the Equal Employment Opportunity Commission’s May 28, 2021, updates to its technical assistance guidance, and a recent federal court order dismissing claims brought by employees against their employer based on the employer’s mandatory vaccination policy.

Continue Reading Taylor White in Texas Lawyer: Employers Get Clarity on Mandatory COVID-19 Vaccination Policies in the Workplace

Winstead PC Shareholder Taylor White published his column in Texas Lawyer about labor and employment issues and trending topics. The article is titled “Misclassification Whiplash: US Department of Labor Withdraws Independent Contractor Rule.” The article is below:

As of May 6, the United States Department of Labor withdrew the Trump Administration’s “Independent Contractor Rule” (Rule). The Rule, had it gone into effect, would have arguably been more employer-friendly in that it would have potentially broadened the factual circumstances in which an independent contractor relationship could be found. It did so by focusing a 5-factor analysis on two “core factors,” which were “(1) [t]he nature and degree of the worker’s control over the work; and (2) the worker’s opportunity for profit or loss.”

The Department of Labor believed the rule was at odds with the FLSA’s statutory text and existing judicial precedent regarding the same. Specifically, the Department of Labor stated that the Rule’s focus on “two ‘core factors’ for determining employee status under the FLSA would have undermined the longstanding balancing approach of the economic realities test and court decisions requiring a review of the totality of the circumstances related to the employment relationship.” The Department of Labor’s goal with the withdrawal is to preserve protections for workers under the FLSA, as well as to ensure their access to benefits normally attendant in an employment relationship. Continue Reading Taylor White in Texas Lawyer: Misclassification Whiplash: US Department of Labor Withdraws Independent Contractor Rule