Federal Fair Chance Act Will Soon Require Federal Contractors to “Ban the Box
In December 2021, covered federal contractors may start seeing new or amended solicitations and contract clauses that prohibit them from inquiring into job candidates’ criminal backgrounds. The federal Fair Chance to Compete for Jobs Act of 2019 (Fair Chance Act) regulates how and when federal contractors may consider the criminal histories of candidates and employees. It does not appear that the law will apply to federal subcontractors.
While the Fair Chance Act was first signed into law on Dec. 20, 2019 as Section 1123 of the National Defense Authorization Act for Fiscal Year 2020, it does not take effect until Dec. 20, 2021. The law bans civilian and defense executive agencies from either awarding federal contracts or releasing payment to a contractor who violates the statutory requirements. Specifically, as a condition of either contract award or receiving payment on a contract, government contractors may not request a job candidate on the contract to disclose his or her criminal history information prior to the contractor’s extending a conditional offer of employment. This restriction applies to criminal background requests made either verbally or in writing.
Exceptions to the restriction exist when: (1) consideration of the criminal history record is required by law; or (2) the employee will have access to classified information or have sensitive law enforcement or national security duties, if hired. Likewise, covered agencies may not require either an individual or sole proprietor bidder to disclose criminal history record information before determination of the apparent awardee.
The law required the Administrator of General Services to issue regulations by April 20, 2021 that would identify other positions exempt from the law. Specifically, the regulations were supposed to consider as exempt positions that involve interaction with minors, access to sensitive information, or managing financial transactions. However, the government has not issued such regulations to date. Although the Defense Acquisition Regulatory Council Director in January 2020 tasked the Acquisition Law Team to draft a proposed Federal Acquisition Regulation rule, no such rule has been published. The latest report extends the deadline to January 5, 2022 – which is now after the statute takes effect.
In addition to the federal Fair Chance Act, contractors should be mindful of their obligations under other federal, state and local laws. For example, federally, the Equal Employment Opportunity Commission (EEOC) scrutinizes background check policies that may have an asserted statistical disparate impact on employees in protected classes, requiring such limits – among other things – to be job related and consistent with business necessity.
In 2012 the EEOC published Enforcement Guidance explaining that an employer can demonstrate an exclusion meets the “job-related” standard in one of two ways. First, the employer can validate the criminal conduct screen for the position in question pursuant to the Uniform Guidelines on Employee Selection Procedures, a set of federal guidelines that address the use of tests and other selection criteria in hiring and other employment decisions. Second, an employer can conduct a “targeted screen” based on the three “Green” factors (taken from the federal Green v. Missouri Pacific Railroad decision), analyzing: (1) the nature and gravity of the conduct; (2) the time elapsed since the conduct or completion of the sentence; and (3) the nature of the job. Evaluating these factors and conducting an individualized assessment can help guard against potential violations of the federal non-discrimination statutes the EEOC enforces. The same is true with respect to affirmative action plan audits, given that in 2013 the Office of Federal Contract Compliance Programs (OFCCP) adopted EEOC’s enforcement guidance as applicable to federal contractors and subcontractors, as well, for purposes of the OFCCP’s compliance reviews.
On the state and local level, contractors should also bear in mind and follow applicable “ban the box” laws. Fifteen states and 22 cities currently prohibit private employers from inquiring about criminal conviction history on job applications, and the District of Columbia and approximately 37 cities and counties have laws affecting government contractors as well. Read more from Lexology.
The Latest Report on Court, State, and Local Activity Concerning Vaccine Mandates
The last four to six weeks have been a whirlwind for private employers across the country. Federal vaccine mandates and regulations have been enacted, and then enjoined, and additional states have limited the ability of private employers to mandate vaccination, or even to verify an employee’s vaccination status. With court challenges continuing, new legislative sessions beginning in the new year, and the latest COVID-19 variant sweeping across the United States, we currently face one of the most uncertain legal periods of the pandemic for private employers.
Federal OSHA Vaccine or Test Lawsuit Update
On November 12 the U.S. Court of Appeals for the Fifth Circuit issued a nationwide injunction ordering the federal Occupational Safety and Health Administration (OSHA) to stop all efforts to implement or enforce the so-called vaccine or test emergency temporary standard (ETS). Pursuant to applicable regulations, on November 16 the Judicial Panel of Multidistrict Litigation consolidated all petitions challenging the ETS in the U.S. Court of Appeals for the Sixth Circuit, via a lottery.
Since that time, OSHA and the petitioners have engaged in procedural and legal wrangling over scheduling, but no substantive activity has occurred. On November 23 the Sixth Circuit issued a schedule for the parties to respond to OSHA’s emergency motion to dissolve the Fifth Circuit’s stay. OSHA filed a motion to expedite that schedule, which the Sixth Circuit denied on December 3. OSHA also sought to transfer the consolidated proceeding to the U.S. Court of Appeals for the D.C. Circuit, a request that was also denied. Currently, parties have until December 10 to file briefs on OSHA’s motion to lift the stay.
Separately, several petitioners have filed motions for review of the consolidated challenges to the ETS by the entire Sixth Circuit, rather than a three-judge panel. OSHA opposes these motions. The court has not yet issued a ruling.
CMS Vaccine Mandate Lawsuit Update
On November 29 and 30, the U.S. District Courts for the Western District of Louisiana and the Eastern District of Missouri issued injunctions that, together, result in a nationwide injunction barring the Centers for Medicaid & Medicare Services (CMS) from enforcing their vaccine mandate for certain healthcare entities.
Separately, on December 6, the U.S. Court of Appeals for the Eleventh Circuit issued a 94-page opinion denying Florida’s lawsuit seeking to enjoin the CMS mandate. In that decision, the Eleventh Circuit questioned the Western District of Louisiana’s nationwide injunction of the CMS mandate. However, the Eleventh Circuit noted that it is the job of the Fifth Circuit to review the Louisiana injunction. For now, the nationwide stay of the CMS mandate remains in place.
Federal Contractor Vaccine Mandate Lawsuit Update
On December 7, the U.S. District Court for the Southern District of Georgia issued a nationwide injunction of President Biden’s federal contractor vaccine mandate. This follows an earlier, more limited injunction that applied to Kentucky, Ohio, and Tennessee. We expect that the government will appeal these injunction orders, but how the relevant circuit courts will rule is unclear.
Despite these injunctions, many government contractor employers are being directed by their contracting agencies or prime contractors to ensure that all or portions of their workforce are vaccinated against the virus. In many cases, the agencies or prime contractors are not relying on the now-enjoined executive order, but rather on the agencies’ own directives and contracting provisions.
Additional State and Local Activity
Kansas Legislation: On November 23, 2021, Kansas Governor Laura Kelly signed into law House Bill 2001. The law allows employees to avoid vaccination against COVID-19 if they submit a written statement: 1) from a healthcare provider that receiving the vaccine would “endanger the life or health of the employee”; or 2) from the employee stating that receiving the vaccine would violate their sincerely held religious beliefs. The law prohibits employers from making any inquiry into the sincerity of religious requests. It also expands what constitutes a “religious belief” to include “theistic and non-theistic moral and ethical beliefs as to what is right and wrong that are sincerely held with the strength of traditional religious beliefs.” The law further provides a mechanism for employees to file complaints of violations of the law with the state secretary of labor, who is directed to investigate and reach findings within 60 days. The state can fine employers with fewer than 100 employees up to $10,000 per violation, and those with 100 or more employees up to $50,000 per violation. The law became effective upon the governor’s signature.
New York City Order: New York City announced a vaccine mandate for all private-sector employers, effective December 27. Employees of private employers in New York City will be required to have at least one dose of a COVID-19 vaccine by that date. More information will be available when guidance is released on December 15. It is not yet known, but likely, that other orders like this will proliferate in localities around the country.
Tennessee Legislation: On November 2 the Tennessee Legislature passed House Bill 9077/Senate Bill 9014, which effectively bans vaccine mandates for employees by governments and private businesses, and on November 12 Governor Lee signed the bill into law. The Tennessee law provides a mechanism for businesses that would experience a “loss of federal funding” if they complied with the law (for example, by failing to comply with the federal contractor vaccine mandate) to request an exemption from the Tennessee comptroller. However, following issuance of the injunction by the Eastern District of Kentucky against the federal contractor vaccine mandate in Kentucky, Ohio, and Tennessee, the Tennessee comptroller announced suspension of reviews of all requests for exemption.
Texas Order: Texas Governor Abbott issued Executive Order GA-40 in October 2021, allowing employees subject to a vaccine mandate by their employer to obtain an exemption for medical or religious reasons, as well as for reasons of “personal conscience.” The meaning of “personal conscience” in this context remains uncertain. On December 8, the Texas Workforce Commission issued a letter to Texas employers reminding them of the order. The Commission also encouraged any employees who are denied exemptions requested under the order to notify the Commission. The Commission stated it will investigate all tips. Verified tips “will be referred to the appropriate authorities for prosecution.” Finally, the letter included a sample exemption form that the Commission encouraged employers to use to “ensure compliance.”
West Virginia Legislation: On October 22, West Virginia Governor Jim Justice signed Senate Bill 335. This West Virginia law will not become effective until January 20, 2022. Once effective, employers will be required to provide exemptions from vaccination to employees and prospective employees who submit a certification from a healthcare provider that the “physical condition of the current or prospective employee is such that COVID-19 immunization is contraindicated, there exists a specific precaution to the mandated vaccine, or the current or prospective employee has developed COVID-19 antibodies from being exposed to the COVID-19 virus or suffered from and has recovered from the COVID-19 virus.” The law also allows employees or prospective employees to submit a notarized certification that they have a religious belief that prevents them from taking the COVID-19 vaccine. The law provides employees with the ability to seek injunctive relief.
As these developments proliferate, employers face a convoluted legal landscape that becomes more complex by the day. Businesses with employees in states with mandatory vaccination policies in effect or under consideration should carefully evaluate the effect of these laws and consult with legal counsel to ensure compliance. Businesses with employees in other states should monitor legislative activity there as well. Read more from Lexology.
The Sixth Circuit Dissolves the Fifth Circuit Stay and Revives the OSHA COVID-19 Vaccine and Testing Emergency Temporary Standard
On November 4, 2021, the Occupational Health and Safety Administration (“OSHA”) issued its highly anticipated Emergency Temporary Standard (the “ETS” or the “Mandate”) requiring U.S. employers with 100 or more employees to either (a) implement a mandatory COVID-19 vaccination policy for employees; or (b) adopt a policy allowing employees to choose between vaccination or weekly COVID-19 testing. While we will describe the ETS and its requirements as issued below, the courts have already been asked to consider myriad legal challenges filed by both private employers and 26 states seeking to enjoin and declare the ETS unconstitutional. Based on the first ruling issued in response to these legal challenges, the future of the ETS is very much in doubt, at least as issued.
The Stay of the ETS
On Saturday, November 6, 2021, the United States Court of Appeals for the Fifth Circuit (“Fifth Circuit”) in B.S.T. Holdings, L.L.C. et al. v. Occupational Health and Safety Administration et al., No. 21-60845, granted the petitioners’ emergency motion to stay the enforcement of the ETS, citing to “grave statutory and constitutional issues with the Mandate.” The Fifth Circuit did not provide any further explanation of its specific concerns, notwithstanding its very conscious choice of the adjective “grave” in its very short, unpublished opinion. As part of the expedited judicial review of the ETS, the Fifth Circuit gave the government until the close of business on Monday, November 8, 2021, to file a response brief to the petitioners’ motion to stay and then gave the petitioners until the close of business on Tuesday, November 9, 2021, to file their reply brief. Presumably, the Fifth Circuit will then hold oral argument and issue an opinion that can then be the basis of an attempted appeal to the Supreme Court of the United States.
In addition to the proceedings before the Fifth Circuit, other challenges are pending before the Sixth, Eighth, and Eleventh Circuits of Appeal. The proceedings before the Eighth Circuit were brought by a number of states (Missouri, Arizona, Nebraska, Montana, Arkansas, Iowa, North Dakota, South Dakota, Alaska, New Hampshire, and Wyoming) and private entities arguing that the ETS goes beyond workplace safety and into issues of general public health and, therefore exceeding OSHA’s scope of authority. The proceedings before the Sixth and Eleventh Circuits make similar challenges. Even with the stay issued by the Fifth Circuit, the other legal challenges should progress rapidly before the various courts so that arguments that may be raised before the Supreme Court are crystallized.
Understanding that how these challenges may ultimately play out is still very much uncertain, the ETS, as drafted, required employers with 100 or more employees to achieve full vaccination status or implement mandatory testing for unvaccinated employees by January 4, 2022. With the stay of the ETS, it is unclear whether and when this mandate may come into effort, but employers still should consider planning for the contingency that the ETS will be effective at some point in the future, including as early as January 4, 2022.
Who Is Covered by the ETS?
The ETS, as issued, applies to any employer that has 100 or more employees at any time while the ETS is effective. Notably, the threshold includes all employees, company or firm-wide, even if some of those employees are ultimately exempted from vaccine or testing due to individual circumstances, as discussed below. For example, an employer with 50 locations that each has only two employees would still be covered by this ETS. The threshold also includes any seasonal, temporary, and part-time employees but not any independent contractors. If an employer’s workforce fluctuates throughout the duration of the ETS, its provisions will apply to the employer during any period in which it has 100 or more employees.
Are There Any Exceptions to Employer Coverage?
Certain employers who are covered by other federal vaccine and testing mandates are excluded from the new ETS. Specifically, employers that are subject to the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors or healthcare providers that are subject to the Centers for Medicaid and Medicare Services (CMS) COVID-19 rule are not covered by the ETS.
Are There Any Exceptions to Employee Coverage?
Although all employees count toward the 100-employee threshold, some employees are exempt from the ETS’ requirements even if their employer is covered. Namely, employees who: (1) do not report to a workplace where other individuals (either customers or co-workers) are present; (2) work from home; or (3) work exclusively outdoors are not subject to vaccination or testing requirements. However, if these individuals who, for example, work from home, do occasionally come into the office or interact with other individuals indoors, then they will be subject to the ETS’ requirements discussed below.
Employees who have a disability or medical reason for refusing or delaying vaccination or who have sincerely held religious beliefs preventing vaccination are also still exempt from any vaccination requirement but are otherwise subject to testing and/or mask-wearing.
I’m a Covered Employer. How Do I Comply With the ETS?
If the ETS is declared enforceable, covered employers will be required to develop and implement a policy for their employees that either (a) requires vaccination of all employees (subject to the limited exceptions); or (b) requires vaccination or weekly testing and face coverings.
The ETS has four main requirements for employers:
1. Implement a Compliant Mandatory Vaccine or Vaccine/Testing Policy for Employees
A covered employer’s first option for complying with the ETS is to implement a policy that requires all employees (other than those who are exempt because of, for example, a disability or religious accommodation) to be fully vaccinated. Fully vaccinated status is defined as receiving both doses of either the Moderna or Pfizer vaccine or a single dose of the Johnson & Johnson vaccine. OSHA has not yet determined whether fully vaccinated status will require any booster shots in the future.
If employers do not want to adopt a mandatory vaccination policy, the ETS provides a second option for compliance: a vaccination/testing policy. If a covered employer chooses this option, the employer can give employees a choice between: (1) getting fully vaccinated; or (2) submitting to regular COVID-19 testing and wearing a face covering at the workplace. Importantly, employers can choose different policies for different portions of their workforce. For example, if a retail company has a customer-facing workforce and a portion of the workforce that works exclusively in offices, then the company could require mandatory vaccination for the customer-facing employees and give the vaccine/testing option to those employees who do not interact with customers.
Regardless of which policy the employer chooses, employers must determine employees’ vaccination status by requesting proof from employees. Acceptable proof includes (a) the Centers for Disease Control and Prevention (“CDC”) vaccination card; (b) records of immunization from a healthcare provider, pharmacy, or public health immunization system; (c) medical record reflecting vaccination; (d) another official document that contains the required information; or (e) a signed attestation by an employee who cannot provide another form of proof. If an employer previously determined the vaccination status of its employees prior to November 5, 2021, the employer does not have to re-evaluate vaccination status, but must still maintain such records and determine the status of any new employees.
If an employer chooses the vaccination/testing option, there are stringent requirements pertaining to the timing of the tests:
- For employees who report at least once every seven days to a workplace where other individuals (co-workers or customers) are present, they must be tested at least once every seven days and must provide documentation of their most recent test no later than the seventh day after they last provided a result; and
- For employees who do not report at least once every seven days (i.e., those who work from home for extended periods of time), they must be tested within seven days before their return to the office and provide the results either prior to or upon their return to the office.
The ETS sets out specific guidance on what form of testing for COVID-19 is acceptable. Unvaccinated employees must not be allowed to return to the workplace until they provide acceptable proof of a negative test. Furthermore, employees who remain unvaccinated (and subject to weekly testing) also are required to wear face coverings with limited exceptions (i.e., while eating or drinking or working alone in an enclosed room).
It is important to note that if an employer chooses to allow the vaccine/testing option, the ETS does not require it to pay for any of the costs associated with the required testing. However, employers can choose to pay for some or all of this cost and may be required to do so by state or local law, by contract, or any applicable collective bargaining agreements.
Regardless of which option is chosen, employers must maintain the applicable records of tests or vaccination as medical records separate from regular personnel files. These records must be maintained as long as the ETS is in effect. They also must be available to employees or their authorized representatives by the next business day following a request by the employee or their authorized representative. Not only that, but covered employers must make the number of vaccinated employees at a workplace along with the total number of employees available to employees by the next business day and to the government within four hours of any request. All other required information must be available to the government by the next business day.
2. Provide Required Information to Employees
In conjunction with whichever ETS-compliant policy covered employers adopt, employers also are obligated to provide certain information to their employees. Employers must relay the following in a language and literacy level that is appropriate for their workforce:
- The requirements of the ETS and the employer’s policies implemented in response;
- Information about the safety and efficacy of the COVID-19 vaccine provided by the CDC;
- The requirements of 29 CFR 1904.35(b)(1)(iv), which prohibit discrimination and retaliation under the Occupational Safety and Health Act; and
- The penalties under OSHA for knowingly providing false documentation (i.e., falsified vaccination records).
3. Provide Support for Employee Vaccination
Although covered employers are not required to pay for COVID-19 testing (if they choose to allow the vaccination/testing option), the ETS requires employers to allow paid time off for employees to be vaccinated. This includes both time to get the vaccine and to recover if necessary. Specifically employers must provide up to four hours of paid time off, including travel time, at the employee’s regular pay rate for employees to get the COVID-19 vaccine. These four hours cannot be offset by any other leave that the employee has accrued, such as sick leave or vacation leave. If the employer chooses to provide vaccines on site, they must pay the employee for the time he or she spends getting the vaccine.
In addition to time off to receive the vaccine, employers must also provide reasonable paid sick leave for employees to recover from any potential side effects. Employers can require employees to take available sick leave for this purpose, but if an employee does not have any or enough sick leave available, they must still be provided the necessary time off.
4. Follow Required Guidelines to Deal With Positive COVID-19 Tests
The ETS also includes requirements regarding how employers must handle positive COVID-19 cases in the workplace. Most importantly, employers must maintain a policy that requires employees to report a positive COVID-19 diagnosis to the employer.
If an employee tests positive for COVID-19 (regardless of vaccination status), that individual must immediately be removed from the workplace. Employees who test positive for COVID-19 may only be allowed to return to work in the following circumstances:
- Receiving a negative result on a confirmatory nucleic acid amplification test following a positive antigen test;
- Meeting the requirements for returning to work set out in the CDC’s “Isolation Guidance”; or
- Being authorized to return to work by a licensed healthcare provider.
Employers are not required to provide paid time off for positive COVID-19 diagnoses under the ETS but may be required to do so pursuant to other laws or collective bargaining agreements.
If a positive COVID-19 diagnosis results in an employee’s hospitalization or death and is workplace related, the employer must report the incident to OSHA. For a fatality, the employer must report within eight hours of learning of it. For hospitalizations, the employer has 24 hours to report.
What if an Employer’s State Government Has a Conflicting Law?
A number of states and other political subdivisions have passed laws or ordinances prohibiting employers from requiring vaccination, testing, or face coverings. Given the political realities of the ETS, OSHA included express language that the ETS preempts all state or local rules relating to face coverings, testing, or vaccinations in the workplace. Therefore, pursuant to the ETS, covered employers cannot prohibit the wearing of face coverings (by employees or customers) and must require testing or vaccination even if their state, city, or municipality says otherwise.
Notwithstanding the Fifth Circuit’s stay, we recommend that employers who otherwise are covered by the ETS do two things: (1) continue to monitor pending proceedings, particularly those by the appellate courts with jurisdiction over their workforce; and (2) make conditional plans to comply with the ETS, knowing that it still could be effective, either as issued or as later modified by OSHA to address legal challenges. Read more from AGG.
The Federal Contractor Vaccine Mandate Is “On Hold,” at Least in Kentucky, Ohio, and Tennessee
On November 30, 2021, the United States District Court for the Eastern District of Kentucky in the lawsuit, Commonwealth of Kentucky et al. v. Joseph R. Biden et al., Civil Action No. 3:21-cv-00055-GFVT, granted a preliminary injunction enjoining the federal government from enforcing the federal contractor vaccine mandate, which has its genesis in Executive Order 14042 issued by President Biden on September 9, 2021 (“EO 14042”). The injunction applies to “all covered contracts in Kentucky, Ohio, and Tennessee.” The court acknowledged that “vaccines are effective” and “the government, at some level, and in some circumstances, can require citizens to obtain vaccines,” but determined that President Biden “exceeded his authority” under the Federal Property and Administrative Services Act in imposing EO 14042 on federal contractors and subcontractors. Moreover, the court entered a “permanent injunction,” stating, “Although the debate over the proper scope of injunctions is ongoing, this Court believes that redressability in the present case is properly limited to the parties before the Court. Consequently, the scope of the permanent injunction shall apply to Kentucky, Ohio, Tennessee and the additional sheriff plaintiffs before the Court in equal force.”
Notwithstanding the label as “permanent” versus “preliminary,” the injunction will undoubtedly be appealed to the United States Court of Appeals for the Sixth Circuit, the same appellate court that is considering whether to continue the stay of OSHA’s Emergency Temporary Standard imposing mandatory vaccination/testing for most employees of employers with 100 or more employees.
It is also unclear exactly how this injunction will be applied. Does this injunction mean that EO 14042 no longer applies to covered contracts that are being performed in Kentucky, Ohio, and Tennessee or to the employees in those three states employed by government contractors with “covered contracts” even if the work is being performed in other states? Does the injunction apply to a company with covered contracts based in one of those three states even if the company has employees working on those covered contracts who are living in one of the other 47 states? The details of applicability of the injunction of EO 14042 are currently unclear and could be subject to efforts to enlarge, modify, and/or vacate the injunction.
Furthermore, there are preliminary injunction hearings scheduled in several other challenges to the federal contractor vaccine mandate over the next week, including before the United States District Court for the Southern District of Georgia (December 3, 2021) and the United States District Court for the Middle District of Florida (December 7, 2021). Like what happened with the CMS Mandate issued for healthcare providers and suppliers, it is possible that one of these courts will extend the injunction, including potentially on a nationwide basis. If and until that occurs, however, government contractors who touch states other than Kentucky, Ohio, and Tennessee still potentially face consequences if they do not comply with EO 14042 outside of these states. For all of these reasons, the permanent injunction issued by the Eastern District of Kentucky is only a chapter of the story as to whether federal contractors and those they do business with must ensure that their employees are vaccinated. Read more from AGG.
Two Federal District Courts Tag Team to Enjoin CMS Vaccine Mandate Enforcement
In the course of 24 hours, two federal district courts, one in Missouri and one in Louisiana, issued preliminary injunctions that prevent the Centers for Medicare and Medicaid Services (“CMS”) from implementing and enforcing its Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule (“IFR”) applicable to certain Medicare and Medicaid-certified providers and suppliers. The collective effect of these decisions is to temporarily enjoin the IFR on a nationwide basis, pending appeals to the Sixth and Eighth Circuits, which could be consolidated much like the litigation involving the OSHA Emergency Temporary Standard (“ETS”) vaccination/testing mandate that was stayed by the Fifth Circuit Court of Appeals.
On November 29, 2021, Judge Matthew Schelp of the U.S. District Court for the Eastern District of Missouri issued a preliminary injunction against the IFR effective in 10 states.1 More specifically, Judge Schelp enjoined the IFR with respect to providers and suppliers affected by the mandate in Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming. Just as providers and suppliers were digesting the implications of the limited nature of this injunction, Judge Terry Doughty of the U.S. District Court for the Western District of Louisiana issued a preliminary injunction on November 30, 2021, that applies to all states other than the 10 states insulated by the Eastern District of Missouri’s preliminary injunction.2
Both judges concluded that the IFR likely exceeds the authority delegated by Congress to the Secretary of the U.S. Department of Health and Human Services and, by extension, to CMS. As a result, they determined that a preliminary injunction was necessary to preserve the status quo pending further appeals or until the cases can be heard on their merits.
The IFR not only mandates that employees of the 21 types of providers and suppliers covered by the rule be fully vaccinated by January 4, 2022, or be granted a medical or religious exemption, the expansive definition of “staff” subject to the mandate captures students, trainees, volunteers, licensed practitioners, and individuals providing care, treatment, or other services to the patients, and/or facilities of such providers or suppliers under contract or other arrangements. Furthermore, the IFR does not include an alternative testing option as contained in the now-stayed OSHA ETS. The IFR’s reach has had providers and suppliers scrambling to implement compliant policies and procedures since it was published in the Federal Register on November 5, 2021. More importantly, providers and suppliers have raced to notify contractors and vendors, many of whom were unaware that the mandate would apply to their employees by extension, in order to work through the numerous legal and logistical challenges presented by the broad reach of the IFR.
While the preliminary injunctions entered into this week take the initial pressure off with respect to an impending December 6, 2021, deadline for staff to receive at least the first dose of a COVID-19 vaccine or apply for an exemption, the ultimate fate of the IFR will be decided in the appellate courts. Although recent decisions have been skeptical of all forms of federal vaccine mandates, we recommend that Medicare and Medicaid certified providers and suppliers potentially covered by the IFR use the additional time provided by these injunctions to complete their preparations for compliance with the IFR in its present form and to be prepared to pivot depending on the outcome of the appellate process. Read more from AGG.
Georgia Judge Enjoins Federal Contractor Vaccine Mandate in Every State in U.S.
On December 7, 2021, R. Stan Baker, judge for the United States District Court for the Southern District of Georgia, enjoined enforcement of Executive Order 14042 (“EO 14042”) “in all covered contracts in any state or territory of the United States of America.” EO 14042 requires that contractors and subcontractors performing work on certain federal contracts ensure that their employees and others working in connection with the federal contracts are fully vaccinated against COVID-19. The plaintiffs included the States of Georgia, Alabama, Idaho, Kansas, South Carolina, Utah, and West Virginia; the governors of several of those states; various state agencies; the Associated Builders and Contractors, Inc. (“ABC”), a trade organization; and ABC’s Georgia chapter. In deciding in favor of the plaintiffs, the court cited the Kentucky v. Biden case, No. 3:21-cv-55, 2021 WL 5587446, at *9 (E.D. Ky, Nov. 30, 2021), which stated, “This case is not about whether vaccines are effective. They are.” The judge also acknowledged the “tragic toll that the COVID-19 pandemic has wrought throughout the nation and the globe.” But, despite those acknowledgements, the court stated:
However, even in times of crisis, this Court must preserve the rule of law and ensure that all branches of government act within the bounds of their constitutionally granted authorities. Indeed, the United States Supreme Court has recognized that, while the public indisputably “has a strong interest in combating the spread of [COVID-19],” that interest does not permit the government to “act unlawfully even in pursuit of desirable ends.”
The court concluded that the plaintiffs likely will succeed in their claim that President Biden exceeded the authority given to him by Congress through the Federal Property and Administrative Services Act in issuing EO 14042. On this point, the court stated, “While the Procurement Act explicitly and unquestionably bestows some authority upon the President, the Court is unconvinced, at this stage of the litigation, that it authorized him to direct the type of actions by agencies that are contained in EO 14042.” With respect to the irreparable injury requirement, the court concluded that “the time and effort spent on these measures [ensuring that employees are fully vaccinated] . . . constitute compliance costs resulting from EO 14042, which appear to be irreparable.” In addressing the balancing of the harms, the court stated in part:
Enjoining EO 14042 would, essentially, do nothing more than maintain the status quo; entities will still be free to encourage their employees to get vaccinated, and the employees will still be free to choose to be vaccinated. In contrast, declining to issue a preliminary injunction would force Plaintiffs to comply with the mandate, requiring them to make decisions which would significantly alter their ability to perform federal contract work, which is critical to their operations.
Finally, the court wrote two sentences in discussing the public interest as follows:
For similar reasons, a stay is firmly in the public interest. From economic uncertainty to workplace strife, the mere specter of [EO 14042] has contributed to untold economic upheaval in recent months” and “the principles at stake when it comes to [EO 14042] are not reducible to dollars and cents.”
Although the court could have limited the scope of the injunctive relief to these seven states, it decided not to do so. Instead, it concluded that in order to truly afford injunctive relief to the parties before it, an injunction with nationwide applicability was warranted.
Thus, the Supreme Court of the United States will likely agree to hear the U.S. government’s appeal on an expedited basis. Read more from AGG.
U.S. Supreme Court Set to Rule on Vaccine Mandates
The United States Supreme Court announced Wednesday, December 23, that it will hear oral argument in two of the cases challenging the vaccine mandates. One case concerns the OSHA ETS rule for private employers with more than 100 employees and the other concerns the Centers for Medicare and Medicaid Services’ vaccine mandate covering certain healthcare facilities.
It appears the Supreme Court has recognized the urgent need to provide businesses with clarity concerning compliance with these vaccine mandates. It is uncertain as to when the Supreme Court will issue its ruling after arguments, but surely the Supreme Court is mindful of OSHA’s January 10 date for issuing citations.
Once the Supreme Court issues its ruling, it will be the final word on these specific rules which have vexed employers for months. Businesses should still begin preparations for implementation of whichever rule is applicable to them in the event the Supreme Court upholds the mandates. Read more from Lexology.
Supreme Court to Hear Argument on OSHA and CMS Rules January 7
The Supreme Court has announced that, on January 7, 2022, it will hear oral argument on challenges to two of the Biden administration’s significant rules regarding COVID-19 vaccination and testing in the workplace: OSHA’s Emergency Temporary Standard (ETS) and the Centers for Medicare and Medicaid Services (CMS) interim final rule. The Supreme Court also made clear that it will not be taking any action with regards to those challenges before January 7, 2022, at the earliest.
The CMS interim final rule is currently stayed in 25 states, and CMS has stated that it is delaying enforcement nationwide pending litigation developments. However, the stay of the OSHA ETS has been lifted so that the ETS is in effect, and OSHA has advised that it intends to begin enforcement of most ETS requirements on January 10, 2022. While the Supreme Court’s announcement confirms that it will decide whether to reinstate a stay of the OSHA rule, it is now certain that the Court will not do so before January 7, and we do not know how long it will take the Court to make a ruling after the January 7 hearing. As such, employers should strongly consider preparing to implement key ETS requirements on January 10, including adopting an ETS-compliant policy, providing paid leave for employees needing time off to be vaccinated, and requiring that unvaccinated employees wear a mask when indoors. Read more from Lexology.
CDC Issues Guidance for Employers to Address Possible Marijuana Use by Drivers
bulletin directed to employers with workers who drive as part of their jobs. The bulletin, “Marijuana Driving: How to Keep Your Fleet’s Drivers Safe,” recognizes that marijuana use is on the rise due to the explosion of medical and recreational marijuana laws passed in most states. Because “marijuana is the most frequently reported drug found in post-crash testing,” the CDC explained that employers should address the issue as part of their “workplace motor vehicle safety programs.”
The CDC began with a discussion of the impact that THC (delta-9-tetrahydrocannabinol) has on users. THC is the psychoactive compound that affects parts of the brain that control movements, balance, coordination, memory, and judgment. Specifically, it can “impair coordination, distort perception, and lead to memory loss and difficulty in problem-solving.” With respect to the impact that THC has on individuals when they drive, “THC can slow reaction times and reduce the ability to make decisions.” In fact, according to the CDC, the risk of a motor vehicle crash increases after the driver uses marijuana. That said, however, the CDC recognizes that because THC can be detected in the body days or weeks after use, the actual impact the drug might have on the accident is not certain.
What does the CDC recommend for employers with workers who drive as part of their duties?
- Develop a comprehensive marijuana policy that accounts for current laws in each state where the employer operates, which prohibits employees from using or being under the influence of marijuana (or any illegal drug) while working.
- Consult with counsel experienced with state marijuana laws in developing a new or revising an existing drug policy.
- Outline the specifics of any required drug testing if mandated by the policy, including the conditions under which testing will occur (e.g., random, reasonable suspicion, post-accident, etc.), the threshold that will constitute impairment, and the consequences of a positive test result.
- Engage a Medical Review Officer to review and interpret THC drug tests.
- Warn drivers that cannabidiol (CBD) products are not regulated, which means that products labeled “THC-free” or “pure CBD” still might have THC in them, and that consumption of CBD products with high THC levels could result in a positive drug test.
- Provide resources to employees with drug problems.
- Educate drivers on the effects of marijuana and other drugs on safe driving and cognitive abilities and the details of the employer’s drug policy.
- Train managers and supervisors on policy requirements and best practices for recognizing and documenting signs of possible drug impairment.
States continue to enact recreational and medical marijuana laws at an increasing pace. Moreover, as noted by the CDC, marijuana use is on the rise across the country. These two considerations have caused employers to place greater emphasis on their drug testing policies, especially for safety-sensitive and other driving roles. Employers in all jurisdictions, especially in those with drug testing laws on the books, would be well-advised to consider a fresh look at their drug and alcohol testing policies to ensure not only compliance with the applicable statutes but also that their policies fit the company’s overall views and goals about candidate and employee marijuana use. Read more from Lexology.
The Department of Fair Employment and Housing Ramps Up Enforcement of California’s “Ban-the-Box” Law
The California Department of Fair Employment and Housing (“DFEH”) recently announced a new effort to identify and correct violations of the Fair Chance Act. The Fair Chance Act, which was enacted in January 2018 and is commonly known as California’s “ban-the-box” law, amended the Fair Employment and Housing Act (“FEHA”) to prohibit employers with five or more employees from directly or indirectly inquiring into, seeking the disclosure of, or considering an candidate’s conviction history (including questions on a job application) until after the candidate receives a conditional offer of employment. We previously summarized employers’ obligations under the Fair Chance Act here.
Among its restrictions, the Fair Chance Act imposes limitations on the types of statements employers can make in job advertisements. The law prohibits employers from publicizing that they will not consider candidates with a criminal history. This includes, for example, advertisements stating, “No Felons” or “Must Have Clean Record.” These and similar statements violate the Fair Chance Act’s requirement that employers consider an candidate’s criminal history on an individual basis, as well as any mitigating information provided by the candidate.
While the Fair Chance Act has been in place since January 2018, the DFEH (the agency charged with enforcing the Fair Chance Act) continues to identify non-compliant job advertisements and materials that employers have posted online. In fact, in a recent one-day review of online job advertisements using technology to conduct mass searches of online job advertisements, the DFEH found over 500 advertisements containing unlawful statements that the employer would not consider job candidates with a criminal record. The DFEH announced that it is documenting these violations and sending notices to the employers to remove the unlawful statements.
The DFEH also released a Fair Chance Act Toolkit and plans to release an interactive training and online application in 2022 to assist employers with compliance. The toolkit provides the following resources:
- Sample forms that employers can use to follow the Fair Chance Act’s required procedures;
- A guide to using DFEH’s sample forms;
- A suggested statement that employers can add to job advertisements and applications to let candidates know that the employer will consider individuals with criminal histories;
- Answers to frequently asked questions about the Fair Chance Act; and
- An informational video that explains the Fair Chance Act.
In light of the DFEH’s enforcement posture and its monitoring of online job advertisements, employers are encouraged to carefully review their recruiting and hiring materials and consult with their legal counsel to ensure compliance with the Fair Chance Act. The legal ramifications for non-compliance are high as the Fair Chance Act allows employees who have suffered a violation of the law to file claims with the DFEH and pursue remedies under the FEHA, which may include compensatory damages, punitive damages, and attorney’s fees. Read more from Lexology.
California and New York City Issue Updated COVID-19 Mandates
On December 13, 2021, the California Department of Public Health (CDPH), citing the Omicron variant and the need for additional protection during the holiday season, issued statewide guidance requiring face masks to be worn in all “indoor public settings” regardless of vaccination status from December 15, 2021 through January 15, 2022.
While the guidance itself does not define “indoor public settings,” the published FAQs clarify that the requirement applies to “all workplaces, regardless of whether they serve the public, or are open to the public” and that masks may also be removed “if the workplace consists of a single employee, or . . . while an employee is alone in a closed office or room.”
The following persons are exempt from the mask mandate:
- Those younger than two years old;
- Those with a medical condition, mental health condition or disability that prevents them from wearing a mask. This includes persons with a medical condition for whom wearing a mask could obstruct breathing or who are unconscious, incapacitated or otherwise unable to remove a mask without assistance;
- Those who are hearing impaired, or must communicate with the hearing impaired where the ability to see the mouth is essential for communication; and
- Those for whom wearing a mask would create a workplace safety risk.
The mandate applies only to those local health jurisdictions that did not, as of December 13, 2021, have an indoor mask mandate in place for public settings regardless of an individual’s vaccine status.
As such, if a local, (i.e., county or city), restriction went into effect before December 13 and it requires indoor masking in public settings irrespective of vaccine status, those local health orders, and not the CDPH mandate, will continue to apply. For example, fully vaccinated residents of San Francisco, Alameda, Contra Costa and Marin Counties may remove their masks in certain indoor spaces, in accordance with the terms of their respective local health guidance.
Nevertheless, employees in such counties can still elect to wear a mask at work. Further, for employers subject to Cal/OSHA COVID-19 Emergency Temporary Standards (ETS) and/or to the Cal/OSHA Aerosol Transmissible Diseases Standard (PDF), those standards continue to apply.
New York City
On December 15, 2021, New York City issued guidance to employers on the private employer vaccine mandate that Mayor Bill DeBlasio announced earlier this month. The guidance conveys the following:
- The vaccine mandate applies to all New York City employers (regardless of size) that maintain a workplace in New York City.
- By December 27, 2021, all employees, interns, volunteers and independent contractors of covered employers who perform in-person work or interact with the public must show proof they have received at least one dose of a COVID-19 vaccine. Workers who have received the first dose of a double-dose vaccine by December 27 will then have 45 days to show proof of their second dose.
- The vaccine mandate does not apply to workers who: (1) work from home and whose employment does not involve interacting in-person with co-workers or members of the public; (2) enter a workplace briefly for a limited purpose; or (3) are non-New York City residents and performing artists or college or professional athletes (as well as those who are accompanying such individuals).
- Employers must verify and keep a record of each worker’s proof of vaccination by December 27. Employers may fulfill this requirement by: (1) maintaining a copy of the worker’s proof of vaccination (i.e., vaccine card); (2) creating a form that includes the worker’s name and vaccination status; or (3) checking each worker’s proof of vaccination each day they enter the workplace and keeping a record of such verification. For non-employee workers, including independent contractors, businesses may request that the worker’s employer confirm that the worker is vaccinated (and keep a record of such confirmation) instead of verifying proof of vaccination pursuant to the methods outlined above.
- Workers who have requested and been granted a reasonable accommodation for a medical or religious reason are not required to comply with the vaccine mandate. The guidance provides detailed information, forms and checklists to help employers evaluate requests for reasonable accommodations.
- Employers must also post a certificate in the workplace affirming they are in compliance with the vaccine mandate by December 27.
- Read more from Lexology.
Philadelphia Bans Pre-Hire Marijuana Testing for Most Candidates
A Philadelphia ordinance prohibiting employers from testing candidates for marijuana as a condition of employment is set to take effect January 1, 2022. The ordinance, which was passed by the Philadelphia City Council and signed into law April 28, 2021, by Mayor Jim Kenney, amends Title 9 of the Philadelphia Code (titled “Regulation of Businesses, Trades and Professions”) by adding Chapter 9-4700. “Marijuana” is defined broadly to include all forms or varieties of cannabis, including “every compound … derivative … or preparation of the plant.”
There are a few, limited exceptions to the prohibition on pre-hire marijuana testing. Specifically, pre-hire marijuana testing is permitted for candidates applying for a position as a police officer or in another law enforcement position, any position requiring a commercial driver’s license, and any position requiring the supervision or care of children, medical patients, those with disabilities, or other vulnerable adults. Additionally, the ordinance does not apply to drug testing required by:
- Any federal or state statute, regulation, or order that requires drug testing of prospective employees for purposes of safety or security.
- Any contract between the federal government and an employer or any grant of financial assistance from the federal government to an employer that requires drug testing of prospective employees as a condition of receiving the contract or grant.
- A collective bargaining agreement that specifically addresses pre-employment drug testing.
The ordinance also contains a safety-sensitive exception, which applies to “any position in which the employee could significantly impact the health or safety of other employees or members of the public.” The ordinance currently does not provide any information on the types of positions that will qualify for this exception; however, it states that the city will publish regulations to address this issue.
With respect to which employers the ordinance applies to, several chapters of the Philadelphia Code contain separate definitions of “employer” to identify which employers are covered by that chapter. There is no definition of employer in the ordinance (Chapter 9-4700); however, the regulations may include a definition that clarifies whether the ordinance applies to all employers in the city of Philadelphia or only to employers with a certain number of employees.
As of the date of this article, the regulations have not yet been published.
EXISTING EMPLOYMENT PROTECTIONS FOR MARIJUANA USERS
Before enacting the ordinance, the city of Philadelphia did not regulate a private employer’s discretion to test candidates or employees for any substance, including marijuana. Philadelphia employers were, however, subject to Pennsylvania’s Medical Marijuana Act, which became effective in 2016 and which generally requires employers to accommodate an candidate or employee’s off-duty use of medical marijuana, unless the accommodation would create a safety risk.
Philadelphia’s ordinance increases the protections for medical marijuana cardholders by ensuring that their cardholder status will not impact their eligibility for hire, unless an exception applies. The ordinance also aligns with the city’s decision to decriminalize marijuana in 2014.
The ordinance does not identify a specific penalty associated with violating the law. However, violations of any provision of the Philadelphia Code for which there is no specific penalty expose the violating party to a fine of $150 to $300. Repeat offenders are subject to an additional fine of up to $300 per violation, or imprisonment for up to 90 days.
TAKEAWAYS FOR EMPLOYERS
Philadelphia employers should prepare for the ordinance’s January 1, 2022, effective date by reviewing their pre-hire drug testing policies. Employers should also monitor for the city’s forthcoming regulations and evaluate which positions may qualify for applicable exemptions. Read more from Lexology.
New York City Employers Will Be Required to Post Salary Ranges in Job Advertisements as of April 2022
Under a new law passed by the New York City Council, which will go into effect in April 2022 if not vetoed by January 14, 2022, employers in New York City will have to include the minimum and maximum starting salary for any “advertised job, promotion or transfer opportunity.”
The bill, available here, will amend the New York City Human Rights Law (NYCHRL) to require that employers disclose a salary range “from the lowest to the highest salary the employer in good faith believes at the time of the posting it would pay for the advertised job, promotion or transfer opportunity” on all job advertisements for positions located in New York City. Employers will also have to include the salary range in all announcements or postings regarding promotion or transfer opportunities.
As the term “salary” is not defined, employers should comply with the new law regardless of whether a position is a salaried, exempt, or hourly non-exempt position. Failure to include a salary range would be considered a discriminatory practice under the NYCHRL. The posting requirement will not apply to temporary positions listed by temporary help firms.
The bill gives the New York City Commission on Human Rights (NYCCHR) the power to issue rules and regulations to implement and enforce the law. The NYCCHR is expected to clarify whether the salary range requirement applies to all jobs advertised in New York City, or only postings for jobs physically located in New York City. Mayor DeBlasio, or his successor, Mayor-elect Eric Adams, has until January 14, 2022, (30 days) to approve or veto the bill, which will go into effect in April 2022 even if the mayor does not affirmatively approve or deny the bill by January 14, 2022.
The New York City law is part of a growing trend of wage transparency laws that have been enacted in other jurisdictions in an effort to promote wage equity for groups who have historically received lower compensation. So far, only Colorado’s law, like the recent New York City bill, requires employers to include salary ranges in job postings.
Other laws require employers to provide wage information upon the candidate’s request or at other times during the recruitment process.
- Laws in Maryland and Washington State require employers to disclose the pay range for a position upon an candidate’s request.
- In California, an candidate who has been interviewed for a position may request the pay range.
- In Nevada, employers must provide salary range information to any candidate who has been interviewed for a position, even absent a request.
- In Connecticut, employers must disclose the wage range upon the earlier of (i) the candidate’s request or (ii) when a job offer is made.
- Rhode Island enacted a similar law, scheduled to go into effect on January 1, 2023, which will require employers to provide candidates with the salary range for a position upon the earlier of the (i) candidate’s request, (ii) when inquiring about an candidate’s salary expectations, or (iii) when an offer is made.
- In Ohio, local laws in Toledo and Cincinnati require employers to provide the salary scale for a position if an candidate who has received a conditional offer requests the information.
Other jurisdictions are considering wage transparency laws. The New York State Senate and Assembly have proposed legislation, S5598A / A6529, which, like the New York City law, would require employers to disclose salary range information to candidates “upon issuing an employment opportunity for internal or public viewing.” Wage transparency bills have also been introduced in Massachusetts and Pennsylvania.
Employers in New York City should begin to prepare for the new wage transparency law by reviewing the salary ranges of existing positions and determining whether to make any changes to those ranges to attract new candidates or retain current employees. Read more from Lexology.
Prime Minister Boris Johnson has announced a move to Plan B in England.
What are the changes?
A full list of guidance on these changes will be available on gov.uk in the coming days, but the key points published to date are as follows:
- From Friday 10 December, face coverings will be compulsory in most public indoor venues, such as cinemas, theatres and places of worship, unless it is not practical to wear one. Face masks will not be required in hospitality settings.
- From Monday 13 December, those who can will be advised to work from home.
- From Wednesday 15 December, and subject to parliamentary approval, the NHS COVID Pass (showing a negative lateral flow test or full vaccination) via the NHS App will be mandatory for entry into nightclubs and settings where large crowds gather. This includes unseated indoor events with 500 or more attendees, unseated outdoor events with 4,000 or more attendees and any event with 10,000 or more attendees.
What does this mean for employers?
The key takeaway for most employers is the working from home guidance. This is a return to the previous position where employees should work from home unless it is not possible for them to do so. All employers should therefore be reviewing their working arrangements, revisiting any working from home policies to ensure compliance with the current guidance and check that people are receiving the support they need (both from a work and overall well-being perspective).
Can our Christmas party still go ahead?
The Prime Minister has said that such parties should not be canceled; however, this is of course subject to compliance with the updated rules. If you are still planning to have a Christmas party, you should consider the following points:
- Communication is key. Talk to your employees to understand whether they still feel comfortable attending.
- Continue to be inclusive.Try not to exclude anyone who does not feel comfortable physically taking part in your Christmas party. Consider offering them the chance to attend virtually.
- Be clear with what you expect.Send out clear communications to ensure your employees understand what the expected standards of behaviour are. Consider what measures you will have in place that employees will need to abide by.
- Know your duties as an employer.As an employer you owe a duty of care to provide a safe working environment. Consider requiring a negative lateral flow test beforehand and ensuring sufficient ventilation.
- Read more from Lexology.
$21 Million Settlement for consumers duped into buying subscriptions from online consumer background report provider.
The FTC and the U.S. DOJ reached a settlement with online consumer background report provider MyLife.com Inc. and its founder and CEO, Jeffrey Tinsley, to resolve allegations that MyLife used misleading tactics to sell difficult-to-cancel subscriptions to consumers in violation of the FTC Act, Fair Credit Reporting Act, the Restore Online Shoppers’ Confidence Act, and the Telemarketing Sales Rule.
The complaint alleged that the MyLife.com website showed search results that implied, often falsely, the subject of the report may have a criminal record, and that these misleading statements led consumers to purchase a MyLife subscription in order to view the report. The complaint also alleged that MyLife used misleading billing practices, including failing to clearly disclose upfront charges and automatic subscription renewals.
Under the terms of the stipulated order, MyLife is subject to a $28.9 million judgment in consumer redress, but will only pay $16 million due to the company’s inability to pay the full amount, and Tinsley will personally pay $5 million. In addition, MyLife and Tinsley are permanently banned from marketing products with a negative option feature, and MyLife is required to implement a monitoring program to ensure that it does not make misleading or unsubstantiated statements to market its background reports, among other things. Read more from Lexology.