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

On December 6, we noted on this blog post that because the injunction issued by the District Court for the Eastern District of Kentucky on November 30 prohibiting the government from enforcing the government contractor vaccine mandate against contractors and subcontractors in Kentucky, Ohio, and Tennessee had national impact, a nationwide injunction seemed to make sense.

Today, the District Court for the Middle District of Georgia, which held a hearing on a motion for a preliminary injunction on December 3, did just that.

The President Likely Exceeded Statutory Authority

The order granted the motion for a preliminary injunction filed by the plaintiffs – Georgia, Alabama, Idaho, Kansas, South Carolina, Utah, and West Virginia – finding that they “will likely succeed in their claim that the President exceeded the authorization given to him by Congress through the Federal Property and Administrative Services Act (FPASA) when issuing Executive Order [EO] 14042.”

The order also granted in part the Associated Builders and Contractors, Inc.’s (ABC) motion to intervene (the court held that ABC’s Georgia chapter, which had also sought to intervene, had not presented evidence that “any specific member of that chapter would have standing”) and granted ABC’s motion for a preliminary injunction.

Read full article on our GovCon & Trade blog.

As we previously reported, on November 30, the District Court for the Eastern District of Kentucky (ED of KY) enjoined the government “from enforcing the vaccine mandate for federal contractors and subcontractors in all covered contracts in Kentucky, Ohio, and Tennessee.” This follows nationwide injunctions of both the OSHA vaccine and testing Emergency Temporary Standard applicable to employers with 100 or more employees and the CMS interim final rule mandating vaccinations applicable to Medicare- and Medicaid-certified providers and suppliers.

As expected, on December 3, the Department of Justice (DOJ) asked the ED of KY for an immediate stay of the injunction and filed a notice of appeal to the Sixth Circuit. The plaintiffs have asked for three business days to respond, and it is unclear when the ED of KY will act on DOJ’s request. But the ED of KY case may be overtaken by other events, as preliminary injunction hearings in additional challenges to the government contractor vaccine mandate occurred on December 3 in two cases and are expected to happen on December 6 and 7 in two others.

Limited or Nationwide Injunction?

In the past few years, several commentators have questioned the conditions, if any, under which district courts may issue nationwide injunctions. While this is a very complex issue that brings into question the rights of the parties in a particular case, those in favor of limiting injunctions to the plaintiffs in the case generally favor having multiple district courts consider an issue so that the legal arguments are better developed before consideration by the appellate courts. Those in favor of nationwide injunctions believe that consistency is favorable, any district court is authorized to enjoin any executive branch action that it determines to be unlawful, and the government’s ability to appeal an injunction provides sufficient protection against improperly issued injunctions.

Read the full article on our GovCon & Trade blog.

On November 30, the District Court for the Eastern District of Kentucky enjoined the government contractor vaccine mandate issued in accordance with President Biden’s Executive Order 14042. This injunction follows an injunction issued on November 29 of the CMS vaccine mandate and the earlier injunction of the OSHA Emergency Temporary Standard by the Fifth Circuit.

The opinion, which is available here, holds that the litigants – which included Kentucky, Tennessee, and Ohio – have a substantial likelihood of succeeding on the argument that the vaccine mandate exceeds the president’s statutory authority under the Federal Property and Administrative Services Act and the Competition in Contracting Act. The court also found that the administration likely violated the non-delegation doctrine by exercising statutory authority “it does not have,” and that the mandate improperly intrudes on health and safety matters reserved to the states under the 10th Amendment.

Read more on our GovCon & Trade blog.

On September 9, the Biden Administration announced “The Path Out of the Pandemic;” a new COVID-19 strategy with direct impact on employers and workplace procedures. Join us for a virtual seminar in which the firm’s labor & employment attorneys will discuss recent federal action related to COVID-19 vaccine mandates and subsequent guidance from government agencies.

In this session, we will provide guidance for navigating the ever-evolving challenges facing employers, including:

  • Impact of New COVID-19 Action Plan.
  • Related Occupational Safety and Health Administration (OSHA) Rules.
  • The Centers for Medicare & Medicaid Services (CMS) Requirements.
  • Bargaining Obligations for Unionized Employers.
  • Practical Considerations for Employers.

Please join us Thursday, November, 18 from 10:00 a.m. – 11:30 a.m. CT | 11:00 a.m. – 12:30 p.m. ET for this informative discussion. To register, please click here.

Who Should Attend

  • In-house legal counsel.
  • Human resources professionals.
  • C-level executives, consultants and principals in companies that are working to bring employees back to the workplace.

Accreditation

Tennessee CLE
This program is pending approval for 1.5 hours General Tennessee CLE credit. Please provide your BPR number upon registration in order for Bass, Berry & Sims to report your participation to the Tennessee CLE Commission.

Other State CLE
Bass, Berry & Sims does not seek direct accreditation from states outside of Tennessee, but some states allow attorneys to earn credit through reciprocity or self-submission. Certificates of completion and other common supporting documents will be provided for use in jurisdictions outside of Tennessee.

HRCI
This program is pending approval for 1.5 hours HRCI credit. Please provide the email address associated with your HRCI account upon registration in order for Bass, Berry & Sims to report your participation to HRCI.

Questions?

Submit your questions for presenters upon registration or email questions to Claire Krummenacher.

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:

  1. A mandatory vaccination policy.
  2. 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.

Continue Reading OSHA Releases COVID-19 Emergency Temporary Standard: Here’s What It Means for Employers

As contractors and agencies scramble to comply with the government contractor vaccine mandate, there seems to be growing confusion over whether contractors or federal agencies are responsible for evaluating whether contractor employees working at government sites are entitled to medical or religious accommodations. In some cases, agencies tell contractors that the government, not the contractor, is responsible for adjudicating accommodation requests.  In others, agencies are demanding to see the justification for accommodation determinations and independently evaluate those determinations.

This confusion is unfortunate because it is clear that the contractor, not the government, is responsible as the employer. To the extent agencies are usurping contractors’ obligation to make these determinations, the government is increasing the likelihood it will be viewed as a joint employer, needlessly exposing both the government and contractors to potential liability.

Employers are Responsible for Making Accommodation Determinations

For decades, employees have had the right to request medical accommodations under the Americans with Disabilities Act (ADA) and religious accommodations under Title VII of the Civil Rights Act of 1964. Those requests have always been submitted to their “employer,” even when those employees work at an off-site location.

Read this article on the Bass, Berry & Sims GovCon & Trade blog.

On September 9, President Biden issued Executive Order 14042 requiring that federal contractors comply with forthcoming COVID-19 workplace safety guidance. That guidance, which was issued on September 24, is remarkably broad, requiring that employees working directly on government contracts, in connection with government contracts, or in the same facility as an employee in the first two categories be vaccinated by December 8, 2021, among other requirements.

Since the guidance was issued, FAR and DFARS deviations have been issued. Those provisions will start appearing in government contracts soon, and similar provisions will be included in contract-link instruments.

These requirements have raised a host of questions, including:

  • Do these rules apply to my company?
  • Do my employees need to get vaccinated? Which ones?
  • What records do companies need to prove employees are vaccinated?
  • Besides trying to vaccinate everyone, what else do I need to do?
  • Does this need to be flowed down in all of my subcontracts?
  • Do these requirements apply to prime contracts solely for goods?
  • Do companies have to grant religious and medical accommodations? How should that be documented?

Please join us for a webinar on October 19, 2021 at 1:00 p.m. ET / 12:00 p.m. CT, as we address these questions and much more. To register, please click here.

Who Should Attend?

  • In-house legal counsel.
  • Human resources professionals.
  • Compliance officers
  • C-level executives, consultants and principals in companies that are working to bring employees back to the workplace.

Accreditation

Tennessee CLE
This program is approved for 1.5 hours General Tennessee CLE credit. Please provide your BPR number upon registration in order for Bass, Berry & Sims to report your participation to the Tennessee CLE Commission.

Other State CLE
Bass, Berry & Sims does not seek direct accreditation from states outside of Tennessee, but some states allow attorneys to earn credit through reciprocity or self-submission. Certificates of completion and other common supporting documents will be provided for use in jurisdictions outside of Tennessee.

HRCI
This program is approved for 1.5 hours HRCI credit. Please provide the email address associated with your HRCI account upon registration in order for Bass, Berry & Sims to report your participation to HRCI.

Questions?

Submit your questions for presenters upon registration or email questions to Brandy Bea.

On September 24, following President Biden’s September 9 Executive Order, Ensuring Adequate COVID Safety Protocols for Federal Contractors, the Safer Federal Workforce Task Force (Task Force) issued new guidance on COVID-19 safety protocols applicable to federal contractors and subcontractors. It is notable that the guidance does not apply to grants.

Before the guidance was released, the Director of the Office of Management and Budget determined, as required by the Federal Property and Administrative Services Act that compliance with those measures laid out in the guidance will promote economy and efficiency in federal contracting. This determination was met because decreasing the spread of COVID-19 “will decrease worker absence, reduce labor costs, and improve the efficiency of contractors and subcontractors performing work for the Federal Government.”  There is no indication that the director considered the impacts of attrition or costs on businesses to administer these requirements.

Breakdown of Requirements under New Executive Order

These requirements, in addition to any requirements applicable in a federal workplace, apply to contractors and subcontractors with a “covered contract.”  The obligations that the guidelines require to be part of a soon-to-be draft contract clause include:

  • By December 8, 2021, “covered contractor employees,” regardless of prior COVID-19 infection and associated immunity must be “fully vaccinated” for COVID-19. This means that at least two weeks have passed after they have received the last required dose of an approved vaccine, except in limited circumstances where an employee is legally entitled to an accommodation.

    Many contractors have questions regarding when an employee may be legally entitled to an accommodation.  The guidance provides that this may be the case “because of a disability (which would include medical conditions) or because of a sincerely held religious belief, practice, or observance.”  It continues, “[r]equests for ‘medical accommodation’ or ‘medical exceptions’ should be treated as required for a disability accommodation.”

    After December, all covered contractor employees must be fully vaccinated by the first day of the period of performance on a newly awarded contract and by the first day of the performance period on an exercised option or extended or renewed contract when the clause has been incorporated into the covered contract.  This also applies to contractor employees working from home on a covered contract.

  • Compliance by covered contractor employees and visitors with published CDC guidance for masking and physical distancing is required while in a “covered contractor workplace.”  This does not apply to covered contractor employees working from home.  It does, however, require that in areas of “high or substantial community transmission,” even fully vaccinated individuals wear a mask in indoor settings.  To determine the level of community spread, covered contractors must check the CDC COVID-19 Data Tracker County View website.
  • Designation by covered contractors of a COVID-19 workplace safety coordinator at covered contractors’ workplaces whose primary duties appear to be communicating the required safety protocols to all covered employees and visitors and confirming compliance by reviewing the required vaccine documentation.  COVID-19 workplace safety protocols may comprise some or all of this person’s regular duties.

Continue Reading Contractors, You Will Get the Jab!

I enjoyed attending the recent 2021 Tennessee Society for Human Resource Management (TN SHRM) Conference & Expo last month and was thrilled to host a session titled “FMLA Cases Presenting Cutting Edge Legal Issues: Are You Prepared to Defend Your Organization from Challenge to Your FMLA Administration?”

Following my session, I had the opportunity to sit down with Cynthia Thompson, editor and publisher of HR Professionals Magazine to further discuss key issues that employers should know about FMLA challenges.

As almost every employer knows, managing leaves of absence can be a challenge.  But, I find that it is helpful to remember the purpose being served by the leave being considered.  It also is helpful to distinguish the leave for which an employee qualifies and the benefits for which an employee may qualify while our on an authorized leave.

Watch the video for our full conversation, and subscribe to this blog for the latest updates on FMLA and other labor & employment and employee benefits laws affecting employers.

From the Bass, Berry & Sims Blog Network
From the Bass, Berry & Sims Blog Network

Thought Leadership by our Attorneys.