Supreme Court Blocks OSHA Vaccination-or-Test Mandate and Upholds CMS Rule Mandating Vaccines – Now What?

On January 13, 2022, the U.S. Supreme Court issued two significant opinions:

  • In Nat’l Fed. of Independent Business v. Occupational Safety and Health Administration, the Supreme Court stayed enforcement of the Occupational Safety and Health Administration’s (OSHA) emergency temporary standard (ETS) related to COVID-19 prevention measures, holding that the groups and businesses challenging the standard were likely to succeed in showing that the ETS requirements exceeded OSHA’s statutory authority.
  • In Biden v. Missouri, the Supreme Court lifted the stay of the Centers for Medicare and Medicaid Services Interim Final Rule (the CMS Rule) for health facilities that receive Medicare or Medicaid reimbursement, holding that the Secretary had statutory authority to issue the mandate.

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Here We Go (Again): OSHA Emergency Temporary Standard Reinstated (Vaccine Mandates, Testing & Face Coverings for Large Employers)

The Occupational Safety and Health Administration (OSHA) on November 4, 2021, issued its Emergency Temporary Standard (ETS), requiring all employers with 100 or more employees to choose between (1) implementing a mandatory COVID-19 vaccine policy, and (2) requiring face coverings and weekly testing for the nonvaccinated. That order was to go into effect on December 6, 2021, requiring the development of a policy and gathering proofs of vaccinations by that date, with the testing part taking effect on January 4, 2022. The U.S. Court of Appeals for the Fifth Circuit on November 12 enjoined the ETS from taking effect; and following that order, OSHA stood down on enforcing the ETS. Much litigation followed, with a national consolidation of related cases shifted to the Sixth Circuit Court of Appeals; and that court on December 17 dissolved the order of the Fifth Circuit, reinstating the ETS.

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New York City Council Imposes Stricter Discipline Requirements on Fast Food Employers

In an expansion of the Fair Workweek Law, the New York City Council has passed legislation permitting quick-service restaurant employers to terminate employees only for just cause or a bona fide economic reason. These heightened requirements effectively eliminate the at-will status of industry employees and create a discipline structure similar to that bargained for by unionized workforces. With the new protections set to take effect in July, employers should begin drafting and implementing policies to comply with the new laws as soon as practicable.

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As Fall Approaches, WARN Act Lawsuits Likely to Heat Up

The global COVID-19 pandemic continues to impact businesses with no clear end in sight. While the prospect of a functioning vaccine may have a while to go, a spike in Worker Adjustment and Retraining Notification (WARN) Act litigation may be on the horizon. Furloughs and workforce reductions have been prevalent since mid-March, leaving millions of employees without jobs or on extended leaves while they wait (and hope) to be recalled to work. While only about a dozen WARN Act lawsuits have been filed to date, as layoffs extend beyond six months, new workforce reductions occur, and more plaintiffs’ attorneys shift their attention to WARN Act claims, the remainder of 2020 may become a hurricane season of sorts as WARN Act litigation could flood the courts. And as the days and weeks go by, an employer’s ability to successfully assert the “unforeseeable business circumstances” defense to providing less than 60 days’ notice of a “mass layoff” or “plant closing” has diminished and will only become more challenging for employers to assert.

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Pandemic Furloughs in Place? Time to Assess Your WARN Obligations

The Coronavirus pandemic business closings started in mid-March by orders of the governors of many states. Some closings were a consequence of customer demand suddenly drying up. It has now been over two months since some of those closings began, and almost every state in the United States is now fully allowing the reopening of businesses. It is time to assess: is there to be a reopening? If yes, please view our extensive alert regarding Return to Work issues. If not, or if you are considering a reopening with less than a full complement of the workforce that was in place in early March, it is time to start assessing compliance with the federal Workers Adjustment and Retraining Notification Act, or WARN, 29 U.S.C. §§ 2101 et seq, (FED WARN) and its states’ counterpart laws, or “mini-WARN” laws.

To read the full alert, please visit the Faegre Drinker website.

Complying With WARN Act Requirements During the Coronavirus Pandemic

In response to the COVID-19 (coronavirus) pandemic, major retail chains, manufacturers, hospitality providers and other employers have been reducing hours/pay or closing employment sites. For many employers, these layoffs are expected to be temporary while the virus runs its course, but economic challenges could turn short-term layoffs into events that trigger notice obligations under the federal Worker Adjustment and Retraining Notification (WARN) Act or state “mini-WARN” Acts. This article answers employers’ common wage and hour and WARN Act questions caused by the coronavirus.

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