Since March 20, 2020, the Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) have allowed employers flexibilities with remote workers to defer physical inspection of I-9 documents temporarily and instead electronically verify I-9 documents over a video link, fax or email. These flexibilities were available for employees who were working remotely due to COVID-19 precautions until they began working non-remotely “on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated, whichever is earlier.”
Mary Leigh Pirtle helps employers navigate complicated and evolving employment law issues. She counsels clients on a wide range of day-to-day employment matters, and regularly conducts onsite internal investigations into allegations of employee misconduct. With experience in both traditional labor and employment litigation, Mary Leigh has represented employers against claims ranging from wage and hour violations to Equal Employment Opportunity Commission (EEOC) violations.
On July 12, the Equal Employment Opportunity Commission (EEOC) updated its COVID-19 FAQs and as a result, revised certain earlier guidance regarding permissible COVID-19 testing, workplace screening, and return to work certifications. The EEOC explained that this revised guidance was due in part to the evolving circumstances of the pandemic but cautioned that these revisions were not intended to suggest that workplace safety policies related to COVID-19 were no longer warranted.
Continue Reading EEOC’s Updated Guidance on COVID-19 Testing in the Workplace
On July 15, the U.S. District Court for the Eastern District of Tennessee entered a preliminary injunction barring the Equal Employment Opportunity Commission (EEOC) and the Department of Education (ED) from enforcing guidance documents issued to interpret Title VII of the Civil Rights Act of 1964 (Title VII) and Title IX of the Education Amendments…
Over the past two years, the pandemic has forced employers to navigate unchartered waters. The focus on health and safety, managing a remote workforce, and staying abreast of the evolving COVID-19-related guidance has left in-house counsel and human resources professionals with little time to focus on the fundamental steps that are essential to proactively and successfully manage employee issues. While the challenges associated with COVID-19 remain at the forefront of employers’ concerns, it is time to return to familiar waters and revisit some of the best HR-related practices. We are excited to offer the second installment of this three-part series both in-person and virtually, via webinar. For those local to the Nashville area, we invite you to join us on April 28 for the in-person presentation where we will address best practices across a range of topics, including:
- Proper complaint intake and investigation planning practices.
- Best practices for conducting employee interviews.
- Managing the aftermath of the investigation, including potential disciplinary actions.
As employees are increasingly returning to the office, a new amendment to existing Tennessee law regarding vaccination further complicates the landscape for employers concerning COVID-19 vaccine mandates. See the full text of the amendment here.
Chapter 2 of Title 14 of the Tennessee Code, passed in November 2021 by the Tennessee Legislature, prohibits a private business, governmental entity, school, or local education agency from compelling or otherwise taking “adverse action” against a person to compel proof of having received a COVID-19 vaccination if the person objects to being vaccinated “for any reason.” See TCA 14-2-102(a). In other words, a private business in Tennessee cannot take adverse action against a person based on their vaccination status. As you may recall, Title 14 provided private businesses with an opportunity to request an exemption from this blanket restriction on their ability to require proof of vaccination by requesting the comptroller exclude the entity from the purview of this law.…
Over the past year, the Biden administration has issued a number of labor and employment executive orders applicable to government contractors. Some of those requirements are updates to Obama-era executive orders, while others are new. Together, these obligations, which include an almost 50% increase to the applicable minimum wage, can have a significant impact on contractors.
For any government contractors that have questions about these labor and employment changes, we hope you can join us for an overview of these recent developments.…
The U.S. Supreme Court, in a 6-3 decision, has again stayed Occupational Safety and Health Administration’s (OSHA) attempt at enforcing its COVID-19 Vaccine and Testing Emergency Temporary Standard (ETS), which OSHA first published on November 5, 2021. This matter will now return to the U.S. Court of Appeals for the Sixth Circuit for further proceedings. But, for now, large employers across the nation are relieved of OSHA’s January 10 and February 9 compliance deadlines.
Continue Reading U.S. Supreme Court Halts OSHA’s COVID-19 Vaccine and Testing Emergency Temporary Standard
On January 7, the Supreme Court heard an oral argument regarding the applications for an emergency stay of the Occupational Safety and Health Administration (OSHA) COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) as well as the regulations issued by the Centers for Medicare & Medicaid Services. As we recently reported here, pending a ruling to the contrary by the Supreme Court, the ETS is currently in effect in the 29 states operating without a state-run OSHA Plan.
Continue Reading TOSHA Will Delay Vaccine Enforcement and Await Supreme Court Ruling
UPDATE: The U.S. Supreme Court has announced it will hold a special session on January 7, 2022 and will hear oral argument on the legal challenges to the OSHA COVID-19 Vaccination and Testing Emergency Temporary Standard as well as the regulations issued by the Centers for Medicare & Medicaid Services requiring vaccination for certain healthcare staff. We will provide additional updates as they become available.
The U.S. Court of Appeals for the Sixth Circuit has dissolved the Fifth Circuit’s stay of the Occupational Safety and Health Administration’s (OSHA) COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS).
In a 2-1 decision issued on December 17, the Sixth Circuit determined that OSHA did not exceed its authority in issuing the ETS, concluding that “[l]ongstanding precedent addressing the plain language of the ACT, OSHA’s interpretation of the statute, and examples of direct Congressional authorization following the enactment of the OSH Act all show that OSHA’s authority includes protection against infectious diseases that present a significant risk in the workplace, without regard to exposure to that same hazard in some form outside the workplace.”
The Sixth Circuit went on to conclude that the plaintiffs could not show irreparable harm in light of COVID-19 still posing an emergency demonstrated by a recent rapid increase in COVID-19 infections and the emergence of the delta and omicron variants, and ultimately that the plaintiffs could not establish a likelihood of success on the merits warranting the Fifth Circuit’s stay.
Continue Reading Sixth Circuit Dissolves Stay of OSHA ETS Requiring Vaccination and Testing for Large Employers
The Occupational Safety and Health Administration (OSHA) has published the long-awaited Emergency Temporary Standard (ETS) as directed by President Biden in his September 9 COVID-19 Action Plan – Path Out of the Pandemic.
The ETS will take effect as soon as it is published in the Federal Register and sets forth the following two options for employers with over 100 employees:
- A mandatory vaccination policy.
- A written policy allowing employees to undergo ongoing testing and masking instead of vaccination.
Employers are required to comply with all aspects of the ETS by December 5, except for the testing program for those employers who choose to provide this option to employees. In that case, employees must either be fully vaccinated or submit proof of testing by January 4, 2022.
We break down the details below.
Which Employers Are Covered?
All employers with a total of 100 or more (full-time or part-time) employees at any time the ETS is in effect are covered. The ETS does not apply to workplaces subject to the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors or settings where an employee provides healthcare services or healthcare support services when subject to the requirements of § 1910.502.…