Published in the New Hampshire Business Review (8/11/22)
New guidance narrows employers’ ability to screen employees.
On July 12, 2022, the Equal Employment Opportunity Commission (EEOC) updated its COVID-19 workplace guidance and this article summarizes the key topics that employers should understand.
Return to Work Testing and Documentation
Under the Americans with Disabilities Act
The Massachusetts law providing up to forty hours of paid sick leave to employees for COVID-related absences will expire on March 15, 2022 according to a notice issued by Executive Office for Administration and Finance on Monday. The law, which was enacted in May 2021, was meant to be effective until April 1, 2022, or the exhaustion of a fund established by the legislature to reimburse employers for the paid leave, whichever occurred first.
Continue Reading Massachusetts Emergency Paid Sick Leave Will End March 15, 2022
On January 25, the Occupational Safety and Health Administration (“OSHA”) formally withdrew its Emergency Temporary Standard (“ETS”) on vaccinations, testing, and face coverings for large employers. This decision follows the Supreme Court’s January 13 order blocking enforcement of the ETS. While the Supreme Court’s action technically only stayed enforcement of the ETS pending further proceedings in the lower courts, the Court’s written opinion made clear that a majority of the Justices believe that OSHA had exceeded its Congressionally-granted authority to promulgate regulations to promote workplace safety. This was widely viewed as a death knell for the ETS.
Continue Reading OSHA Withdraws Vaccine-or-Test Emergency Temporary Standard
On Thursday, the U.S. Supreme Court handed down a pair of anxiously-awaited decisions affecting tens of millions of American workers.
In the first decision, the Court stayed implementation of an Emergency Temporary Standard (“ETS”) issued by OSHA that would have required employers with 100 or more employees to adopt and enforce policies either (a) mandating COVID-19 vaccines for most workers, or (b) requiring unvaccinated workers to wear masks at work and get weekly tests for COVID-19.
On January 7, 2022, the U.S. Supreme Court will hear arguments on the federal vaccine mandates for employers with 100 or more employees and for healthcare facilities receiving federal funds. The Court has ordered additional briefing on the issues and has set one hour for oral argument.
The Occupational Safety and Health Administration (“OSHA”) released
On December 14, 2021, the EEOC updated its guidance entitled What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws to include a section on how the definition of disability applies to COVID-19. The section includes helpful Q and A addressing when COVID-19 becomes an actual disability.
Continue Reading EEOC Updates Guidance To Address Whether COVID-19 Is a Disability
On Friday, December 17, 2021, the Sixth Circuit Court of Appeals dissolved the stay of the Occupation Safety and Health Administration (OSHA) Emergency Temporary Standard (ETS), which requires employers with 100 or more employees to adopt a policy either (a) mandating the COVID-19 vaccine for all employees or (b) mandating employees to show proof of vaccination status or submit to weekly testing. Within hours, the decision was appealed to the United States Supreme Court. That same night, OSHA issued a statement advising employers that, now that the stay has been lifted, it will allow a brief extension of the deadlines established in the initial ETS. Covered employers must now comply with the provisions of the ETS by January 10, 2022. If an employer opts to permit employees to undergo weekly testing in lieu of vaccination, then testing of unvaccinated employees must begin on or before February 9, 2022.
Continue Reading Sixth Circuit Dissolves Stay of OSHA ETS; OSHA Immediately Posts New Compliance Deadlines
The Centers for Medicare and Medicaid Services (“CMS”) issued a nationwide suspension of its vaccine mandate for health care workers. CMS’s decision comes after two District Courts issued preliminary injunctions pausing implementation of the rule.
On December 2, 2021, CMS announced that it “will not enforce the new rule regarding vaccination of health care workers or requirements for policies and procedures in certified Medicare/Medicaid providers and suppliers…while there are court-ordered injunctions in place prohibiting enforcement of this provision.”
Continue Reading Update: Nationwide Suspension of CMS Vaccine Mandate for Healthcare Workers
On December 7, 2021, the United States District Court for the Southern District of Georgia stayed the federal contractor vaccine mandate issued by the White House via Executive Order 14042 on September 9, 2021. This Court Order, which applies nationwide, enjoins the federal government “from enforcing the vaccine mandate for federal contractors and subcontractors in all covered contracts in any state or territory of the United States of America.” Previously, on November 30, 2021, a federal court in Kentucky enjoined the government from enforcing the mandate in Tennessee, Ohio and Kentucky only. The Georgia Court expanded the reach of the order nationwide because one of the plaintiffs in the Georgia litigation, the Associated Builders and Contractors’ trade association, has members nationwide with contacts and subcontracts in every state. Therefore, the Court concluded that “limiting the relief to only those [contracts] before the Court would prove unwieldy and would only cause more confusion.”
Continue Reading Enforcement of Federal Contractor Vaccine Mandate Halted Nationwide
The Centers for Medicare and Medicaid Services’ (CMS) vaccine mandate is, for the time being, not enforceable in New Hampshire and nine other states. On Monday, November 29, 2021, the U.S. District Court for the Eastern District of Missouri granted a preliminary injunction blocking the mandate.
What is the CMS Mandate?
The CMS vaccine mandate requires that select healthcare workers at facilities receiving Medicare and or Medicaid funding be fully vaccinated by January 4, 2022.
Continue Reading CMS Vaccine Mandate Halted in New Hampshire