In 2021, we saw the continuation of restrictions and limitations on non-compete laws at the federal and state levels. On July 9, President Biden signed an executive order advocating for the Federal Trade Commission’s (FTC) authority to prevent unfair non-compete practices in the workplace. Additionally, Colorado, Illinois, Nevada, Oregon and Washington, D.C. all modified or enacted new restrictions on non-competes, further indicating a broader legal trend toward limiting the power of employer form agreements and practices.

Join us for a virtual seminar in which we will summarize non-compete law developments from 2021 and discuss trends most likely to impact the coming year.

Topics covered during the webinar will include:

  • Federal initiatives in non-compete enforcement.
  • State trends and newly effective state non-compete restrictions.
  • Recent rulings and verdicts impacting employer agreements.

The webinar will be held on Wednesday, February 23 at 10:00 a.m. Central. To register, please click here.

Continue Reading [WEBINAR] Non-Compete Law Developments and Enforcement Trends for the Coming Year

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.

The high court determined that the applicants were likely to succeed on the merits of their claim that the Secretary lacked authority to impose the mandate set forth in the ETS, concluding that the Secretary’s order for 84 million Americans to either obtain a COVID-19 vaccine or undergo weekly medical testing at their own expense was no “everyday exercise of federal power,” and instead, was a “significant encroachment into the lives—and health—of a vast number of employees.”

In finding that the Occupational Safety & Health Act did not plainly authorize the ETS, the Supreme Court determined that the standards outlined in the ETS were intended to regulate a broad public health measure, exceeding the agency’s authority to regulate workplace safety standards. The majority opinion noted that while COVID-19 was certainly present in the workplace, it was not limited to simply an occupational hazard and could also be spread in homes, schools, during sporting events, and in other places where individuals gather. As stated in the decision, “Permitting OSHA to regulate the hazards of daily life – simply because most Americans have jobs and face those same risks while on the clock – would significantly expand OSHA’s regulatory authority without clear congressional authorization.”

Continue Reading U.S. Supreme Court Halts OSHA’s COVID-19 Vaccine and Testing Emergency Temporary Standard

Over the past two years, the pandemic has forced employers to navigate in unchartered waters. The focus on health and safety, managing a remote workforce, and staying abreast of the ever-changing COVID-19-related legislation and guidance has left in-house counsel and human resources professionals with little time to focus on many of the fundamental steps that are essential to proactively and successfully managing 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.

Join us for the first of a three-part virtual seminar in which Bass, Berry & Sims labor & employment attorneys will address best practices across a range of topics that continue to impact day-to-day operations in the workplace and cause potential risk exposure for employers.

Topics covered during the first webinar of the series will include:

  • Training for the C-Suite, Managers/Supervisors and Employees.
  • Auditing Pay Practices (Pay Equity and Wage & Hour Compliance).
  • Updating Policies and Job Descriptions for the New Year.

To access the recording of this webinar, please click here.

Continue Reading [WEBINAR] Returning to Familiar Waters – Best Practices for Proactively Managing Workplace Issues and Minimizing the Risk of Employment-Related Litigation

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.

The remaining 21 states with approved State Plans must first adopt the ETS or a standard that is at least as effective. It is our understanding that federal OSHA has signaled to the State Plans that it expects those agencies to do so by January 24. Tennessee Occupational Safety and Health Administration (TOSHA), which operates Tennessee’s state-run plan, has now updated its website announcing that it will not take any action toward adoption pending the Supreme Court’s ruling on the legality of the ETS:

“Leadership for the Tennessee Occupational Safety and Health Administration (TOSHA) continues to closely monitor legal developments regarding the federal government’s proposed mandate requiring COVID-19 vaccinations or frequent testing for employees at Tennessee’s largest employers. With the United States Occupational Safety and Health Administration’s decision to delay enforcement of its Emergency Temporary Standard (ETS) until February, TOSHA will wait for the United States Supreme Court ruling on the legality of the ETS before taking any further action.”

Continue Reading TOSHA Will Delay Vaccine Enforcement and Await Supreme Court Ruling

The Centers for Medicare & Medicaid Services (CMS) announced it will enforce the COVID-19 Health Care Staff Vaccination Interim Final Rule in the 25 states, District of Columbia, and territories in which the healthcare vaccine rule has not been enjoined by a court. Medicare or Medicaid providers or suppliers in the following states are required to comply with the CMS vaccinate mandate: California, Colorado, Connecticut, Delaware, Florida, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Tennessee, Vermont, Virginia, Washington and Wisconsin.

Enforcement will be made along a modified timeline. The new deadline for Phase 1 implementation (first dose or one-dose vaccine, unless there is an approved disability or religious accommodation) is January 27, 2022. The deadline for Phase 2 implementation (full vaccination, unless there is an approved disability or religious accommodation) is February 28, 2022. Interim Final Rule and CMS guidance can be found here. Surveyors will begin surveying for compliance with the vaccine requirement beginning January 27, 2022.

Medicare- and Medicaid-certified providers and suppliers in the following states are not required to undertake any efforts to implement or enforce the CMS vaccination mandate at this time due to ongoing litigation enjoining enforcement: Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia and Wyoming.

If you have any questions about this latest development related to the vaccine mandate, please contact the author.

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.