New EEOC Technical Assistance Addresses Caregiver Discrimination

On March 14, 2022, the U.S. Equal Employment Opportunity Commission (EEOC) released a technical assistance document, the COVID-19 Pandemic and Caregiver Discrimination Under Federal Employment Discrimination Laws, which explains how discrimination against applicants and employees with caregiving responsibilities can violate federal equal employment opportunity (EEO) laws. Although EEO laws do not prohibit discrimination against caregivers specifically, there are some circumstances in which discrimination against caregivers may be unlawful. Because the COVID-19 pandemic has created — and exacerbated — competing job and caregiving demands for individuals as they navigate hybrid work schedules, unexpected closures of school and care facilities, and potential COVID-19 exposure, the EEOC’s updated information may inform employer decisions and actions as they adapt their workplaces to the evolving COVID-19 pandemic.

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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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OSHA Suspends Emergency Temporary Standard (ETS) Enforcement Following Fifth Circuit Ruling – Now What?

On Friday, November 12, 2021, in BST Holdings, L.L.C, et al. v. Occupational Safety and Health Administration (OSHA), Case # 21-60845, the United States Court of Appeals for the Fifth Circuit issued an order affirming its November 6, 2021 order, staying the implementation and enforcement of OSHA’s November 5, 2021 Emergency Temporary Standard (ETS). The ETS requires employers with 100 or more employees to ensure that their employees who report to a workplace are vaccinated against COVID-19 or submit to weekly COVID-19 testing. The Fifth Circuit, which many consider to be the most politically conservative of all the circuit courts, issued its order following an expedited briefing schedule, prompted by an emergency motion to stay the ETS filed by various individuals, employers, religious groups and states. Pending further judicial review, the order barred OSHA from taking steps to implement or enforce the ETS. In response, OSHA has suspended all activities related to the ETS for the time being, stating: “While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.” Businesses now face an uncertain future with OSHA conceding that it will abide by the court’s order while pursuing its reversal. Because similar challenges to the ETS have been brought in all but one of the 12 federal circuit courts of appeals, the U.S. Judicial Panel on Multidistrict Litigation will conduct a lottery as required by statute, pursuant to 28 U.S.C.A. §2112 (a)(3),  likely this week, to select which federal circuit will hear appeals in the numerous challenges, including with respect to the Fifth Circuit’s order. Any outcome from the circuit selected in the lottery process may and likely will be appealed to the U.S. Supreme Court.

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New EEOC Guidance Addresses Faith-Based Vaccine Exemptions

As COVID-19 vaccine mandates by employers become more common, so do requests for exemptions. Requests for religious exemptions from COVID-19 vaccine mandates have forced many employers to make difficult decisions regarding the validity of the accommodation requests as well as whether and how to reasonably accommodate legitimate requests — while also meeting the obligation to maintain a safe and healthy workplace. Yesterday, the EEOC issued new guidance providing helpful insight regarding an employer’s obligation to grant requests for religious exemptions to COVID-19 vaccine mandates.

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Texas Federal Court Rejects Challenge to Employee COVID-19 Vaccination Requirement

While public health leaders continue to wrestle with vaccine hesitancy, businesses are wrestling with employee challenges to COVID-19 vaccination mandates. This Saturday marked a win for private employers after a Texas District Court tossed a lawsuit brought by over 100 hospital employees claiming they were subjected unlawfully to a COVID-19 vaccination policy as a condition of continued employment. Although the plaintiffs’ counsel has said they plan to appeal the decision, the order provides helpful precedent for other organizations mulling such vaccination mandates.

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