New Federal OSHA COVID-19 National Emphasis Program and Enforcement Response Plan Targets Industries and Activities for Inspection

On March 12, 2021, the U.S. Occupational Safety and Health Administration (OSHA) released a new National Emphasis Program (NEP) designed to “significantly reduce or eliminate worker exposures to [COVID-19]” by targeting specific “high-hazard industries or work tasks” with greater frequency of close contact between workers for on-site inspections, outreach, and compliance assistance related to COVID-19 prevention and response measures. While federal OSHA’s NEP technically does not apply to state plans, OSHA is strongly encouraging them to do so; and state plans must submit within 60 days a notice of intent indicating whether they intend to adopt same or similar initiatives.

The NEP specifically targets certain industries based on public enforcement data, such as complaints, inspections and COVID-19-related violations, where the data reflects that workers are expected to perform tasks associated with exposure to COVID-19. The NEP lists numerous “primary” targets, which are divided up as either healthcare or non-healthcare employers.

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Preview of Things to Come? Lawsuit Challenges Employer COVID-19 Vaccine Mandate

Access to COVID-19 vaccines continues to expand in the United States and employers are navigating many questions surrounding employee vaccination and return to work. Current polling shows a substantial number of American workers are hesitant about or may refuse to be vaccinated against COVID-19. Now, an employee in New Mexico has filed what appears to be one of the first lawsuits opposing an employer’s vaccination mandate.

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The Impact of COVID-19-Related Factors on Courts’ Enforcement of Employee Post-Employment Restrictive Covenants

In the best of economic times, some courts can be reluctant to grant immediate injunctive relief and enjoin an employee from working in order to enforce employee post-employment restrictive covenants. Now that we are in the midst of a global pandemic and an economic recession, that challenge has grown. Current economic considerations are causing some courts to weigh the “balance of harms” on injunctive relief applications in favor of employee defendants who are faced with the difficulty of finding other work in an economic downturn with high unemployment. Nevertheless, our review of recent decisions from around the country indicates that courts remain willing to consider injunction motions on an emergent basis to enforce restrictive covenants, particularly where there is a threat of trade secret misappropriation.

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Tenth Circuit Ruling Shows Bostock’s Impact on Title VII Employment Litigation

In the wake of the Supreme Court’s landmark ruling in Bostock v. Clayton County, Georgia, which extended federal statutory protections to the LGBT community, many have wondered how that decision might impact other employment litigation under Title VII of the Civil Rights Act of 1964. The Tenth Circuit’s recent decision in Frappied v. Affinity Gaming Black Hawk, LLC, No. 19-1063 (10th Cir. 2020), suggests that, following Bostock, courts may begin to recognize new claims or even reconsider prior limitations on Title VII’s scope.

For the full alert, visit the Faegre Drinker website.

OSHA Updates Its COVID-19 Recordkeeping Guidance, Giving Employers Helpful Guardrails

COVID-19 has reached virtually the entire country, and both employers and employees in a broad range of industries have experienced outbreaks. At the same time, the government and private sector continue to take steps to slow the virus’s spread and protect employees while adapting to the new business environment. In recognition of the unique challenges posed by COVID-19, the Occupational Safety and Health Administration (OSHA) is applying updated guidance in an effort to provide additional clarity to employers and workers.

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Seventh Circuit: BIPA Claims Can Be Heard in Federal Court

Class action litigation under the Illinois Biometric Information Privacy Act (BIPA) has exploded over the last several years. An ongoing issue has been the proper forum for such cases, namely whether there is constitutional, Article III “standing” for BIPA claims to proceed in federal court. A May 5 ruling out of the Seventh Circuit Court of Appeals brought much-needed clarity to the issue by holding that a federal court could hear certain BIPA claims.

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