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Vaccine Mandates: Where are we now?
01/28/2022
By: Morgan Geffre

On January 25, the Occupational Safety and Health Administration (“OSHA”) announced that it was withdrawing its Emergency Temporary Standard (“ETS”), which required that employers with 100 or more employees require their employees to be vaccinated or undergo weekly testing for COVID-19. OSHA’s retreat followed a ruling from the U.S. Supreme Court that sent the case back to a lower court for final disposition, but effectively signaled the end for the ETS. However, that same Supreme Court ruling also lifted a stay and thus breathed new life into the Center for Medicare and Medicaid Services’ mandate that health care providers that receive Medicare or Medicaid reimbursement must require certain employees to be vaccinated. Here’s a summary of where things stand with respect to the federal government’s major vaccine mandates.

 
CMS Mandate for Healthcare Employees: 
On January 13, 2022, the Supreme Court gave the go-ahead to the Centers for Medicare and Medicaid Services’ (“CMS”) vaccination mandate by lifting stays imposed by federal courts in Missouri and Louisiana. The next day, CMS released updated compliance deadlines for the states covered by the Supreme Court ruling, including Kansas. By February 14, 2022, Kansas employers covered by the CMS vaccine mandate must ensure staff have received at least one dose of COVID-19 vaccine, or have a pending request for, or have been granted a qualifying exemption. By March 15, 2022, Kansas employers covered by the vaccine mandate must ensure staff have received all necessary doses to complete a vaccine series, or have been granted a qualifying exemption.      Continue Reading...
 
New Year's Resolutions for HR
01/12/2022
By: Morgan Geffre

If you are like most people, you are now a couple of weeks into the new year with a variety of resolutions such as losing weight, getting fit, eating healthier, or getting organized. Without impeding your opportunity for success on your personal resolutions or curing the skeptics who refuse to partake in such resolutions, consider some areas where you can make improvements at work. Do not seek perfection in achieving these goals, but rather evaluate whether there is room for improvement in each area.

1. Train managers. While it would be nice to spend weeks designing a comprehensive training program, many of us face time constraints and reluctance from management to allow employees time away from their jobs. Instead of seeking perfection, consider alternative steps to take. Would it be possible to stop by “crew meetings” and do a five-minute refresher on sexual harassment? While we all dread meetings — especially via Zoom — consider if it would be better to do a shorter presentation at a set meeting instead of having multiple meetings to prepare for training. 

2. Hold managers accountable. We have all met managers who just don’t get it. While training will help with some managers, additional action is often needed to address a manager’s poor work performance or abusive management style. When you become aware of such behavior, discuss the problem with the manager’s boss and make sure the problem is addressed with the manager during the performance appraisal process. 

3. Check the contents of your personnel files. While      Continue Reading...

 
Court Temporarily Halts Federal Contractor Vaccine Mandate Nationwide
12/07/2021
By: Morgan Geffre

On Tuesday, December 7, 2021, the U.S. District Court for the Southern District of Georgia issued a preliminary injunction halting the enforcement of the COVID-19 vaccine mandate for federal contractors and subcontractors in all covered contracts nationwide. Though the lawsuit only included Georgia, Alabama, Idaho, Kansas, South Carolina, Utah, and West Virginia, the court issued the injunction “with nationwide applicability.” This order follows last week’s preliminary injunction by the U.S. District Court for the Eastern District of Kentucky to halt the mandate in Kentucky, Tennessee, and Ohio.

The Court’s order was based on its determination that the “Plaintiffs 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 when issuing Executive Order 14042.” Under Executive Order 14042, certain government contracts were to include a clause stating that the contractor and subcontractor (at any tier) must comply with all guidance published by the Safer Federal Workforce Task Force. The updated Task Force guidance imposed a deadline for covered contractor employees to be fully vaccinated, unless legally entitled to an accommodation, by January 18, 2022.

This ruling follows nationwide stays to the implementation and enforcement of the Biden Administration’s two other key vaccine mandates: the Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard (ETS) and the Centers for Medicare and Medicaid Services (CMS) Omnibus COVID-19 Healthcare Staff Vaccination Interim Final Rule.

All three of these injunctions remain in effect until further court order, though they are not yet permanent      Continue Reading...

 
Fifth Circuit Continues Stay of OSHA ETS for Large Employers
11/15/2021
By: Morgan Geffre

On Saturday, November 14, 2021, the U.S. Court of Appeals for the Fifth Circuit issued a ruling to continue its temporary stay blocking the implementation of the Occupational Safety and Health Administration’s Emergency Temporary Standard (“OSHA ETS”), which directs certain private employers with 100 or more employees to mandate COVID-19 vaccinations or weekly testing.

A lawsuit challenging the OSHA ETS has been filed in each of the different circuits. On November 16, 2021, the Judicial Panel for Multidistrict Litigation will meet to assign the consolidated cases to one of those federal appeals courts. We will continue to monitor the case. In the meantime, employers may need to continue making preparations to comply with the OSHA ETS by the December 5, 2021, deadline, in the event the OSHA ETS is ultimately upheld. It is important to remember that the Court’s order applies only to the OSHA ETS. It does not apply to the separate vaccine mandates imposed on federal contractors and Medicare and Medicaid certified providers, which require that covered employees be vaccinated (or accommodated for medical or religious reasons) by January 4, 2022. Each of those mandates are also facing legal challenges, though the courts have yet to delay implementation.

An overview of the OSHA ETS requiring large employers to mandate vaccines or provide weekly testing is available here, and the alert regarding the initial temporary stay of the OSHA ETS is available here.

 
OSHA Releases ETS Requiring Large Employers to Mandate Vaccines or Provide Weekly Testing
11/04/2021
By: Morgan Geffre

Today the Occupational Safety and Health Administration (“OSHA”) released its Emergency Temporary Standard (“ETS”) requiring employers with 100 or more employees to ensure all employees to either be (1) fully vaccinated, or (2) produce a negative test result on at least a weekly basis before coming to work.

Employers must implement vaccine policies, leave, and masking requirements by December 5, 2021, and must implement testing requirements by January 4, 2022. Here are some of the ETS’s general requirements:

  • The ETS applies to employers with 100 or more employees on a company-wide basis, regardless of the number of employees at a particular work site. 
  • Employers must develop and enforce either a (1) mandatory COVID-19 vaccination policy or (2) establish and enforce a policy allowing employees to elect either to get vaccinated or to undergo weekly COVID-19 testing and wear a mask.
  • The ETS provides protections for employees who are unable to be vaccinated due to a disability or a sincerely held religious belief
  • Employers can require employees to pay for the cost of weekly testing under certain circumstances. 
  • Employers must determine the vaccination status of each employee, obtain proof of vaccination, and maintain a roster of each employee’s vaccination status.
  • Employers must provide paid time off for employees to receive the vaccine and recover from any side effects from the vaccine.
Similar to the previous healthcare ETS, this ETS will expire in six months. An      Continue Reading...
 
Task Force Issues Vaccine Guidance for Federal Contractors
09/28/2021
By: Morgan Geffre

As President Biden announced under his COVID-19 Action Plan, the Safer Federal Workforce Task Force issued its Guidance for Federal Contractors and Subcontractors on September 24. The guidance has already been approved by the Office of Management and Budget.

President Biden’s executive order required certain government contracts to include a clause stating that the contractor and any subcontractors (at any tier) must, for the duration of the contract, comply with all guidance for contractor or subcontractor workplace locations published by the Safer Federal Workforce Task Force and approved by the Office of Management and Budget (the “COVID clause”). Below is a summary of the scope and implementation of the Safer Federal Workforce Task Force’s guidance:
 
Scope
 
President Biden’s Executive Order applies to all procurement contracts or contract-like instruments: (1) for services, construction, or a leasehold interest in real property; (2) for services covered by the Service Contract Act; (3) for concessions; (4) for the provision of services on Federal property for Federal employees, their dependents, or the general public (“covered contracts”). Notably, this definition does not cover contracts solely for the provision of products. The Executive Order further exempts, among others, subcontracts of covered contracts that are solely for the provision of products, as well as federal government grants.
 
Under the Task Force guidance, the COVID clause must be included in solicitations for covered contracts after October 15, 2021, and in all new covered contracts issued after November 14. For existing covered contracts, the COVID clause must be incorporated whenever a contractual      Continue Reading...
 
President Biden Announces Sweeping Vaccine Requirements for Employers
09/12/2021
By: Morgan Geffre

On September 9, President Joe Biden announced his COVID-19 Action Plan. The Plan, which includes two new Executive Orders to combat COVID-19 and the Delta variant, would require many employers to mandate that its employees be vaccinated. The mandates will not go into effect until government agencies issue regulations that more clearly explain the requirements. Potentially impacted employers should stay tuned for the upcoming regulations, prepare their workforce and policies for the impending requirements, and continue to monitor the legal landscape. 

Federal Employees
 
President Biden issued an Executive Order requiring federal government employees to be fully vaccinated by November 22, 2021, subject to exceptions as required by law (such as medical and religious reasons). 
 
Federal Contractors 
 
President Biden issued another Executive Order requiring all government contracts, subcontracts, extensions, and renewals issued after October 15, 2021, to include language requiring compliance with guidance to be published by the Safer Federal Workforce Task Force, which would include vaccine requirements for employees. The Task Force is set to publish guidance defining contractors, explaining safety protocols, and outlining exceptions by September 24, 2021, which must then be approved by the director of the Office of Management and Budget.
 
Private Employers with 100 or More Employees
 
The broadest component of President Biden’s Action Plan included an announcement that the Occupational Safety and Health Administration (OSHA) has been tasked with developing a rule that will require all private employers with 100 or more employees to ensure their workforce is fully vaccinated. Any employees who remain unvaccinated      Continue Reading...
 
Kansas Governor Expands Paid Parental Leave for State Employees
07/09/2021
By: Morgan Geffre

On July 6, Kansas Gov. Laura Kelly issued an executive order expanding parental leave for Kansas state employees. Primary caregivers will now receive an extra two weeks of leave, and secondary caregivers will receive one extra week. Importantly, Kansas’s parental leave for state employees is paid at 100% of the employee’s regular salary.

Kansas employees first received paid leave under former Gov. Jeff Colyer in Nov. 2018. Previously, primary caregivers received six weeks of leave, and secondary caregivers received three weeks. Now, primary caregivers will receive eight weeks of leave, and secondary caregivers will receive four weeks. Gov. Kelly’s new executive order also provides the same leave to new foster parents, who previously would not have qualified.

Paid parental leave applies to Kansas employees who have been employed for at least 180 days, regardless of classification, part-time/full-time status, or whether leave is for the birth, adoption, or foster placement of a child. Employees may start leave up to 30 days prior to the projected due date in order to prepare for the new child. Additionally, employees must utilize all leave within the first 12 weeks of the birth, adoption, or foster placement.
 
The new executive order goes into effect immediately, though new state employees must still wait 180 days after the start of employment to become eligible for parental leave.
 
OSHA Issues Emergency Temporary Standards for Healthcare Employers
06/25/2021
By: Morgan Geffre

On June 21, 2021, OSHA issued its Covid-19 Emergency Temporary Standards (“ETS”). The ETS is aimed at protecting workers facing the greatest risk of COVID-19—those working in healthcare settings where COVID-19 patients may be treated. Employees working in healthcare services and healthcare support services includes a broad range of employees, outside of just a hospital setting.

The ETS requires employers to implement COVID-19 plans that include the designation of a safety coordinator, a workplace-specific hazard assessment, and policies and procedures to minimize the risk of transmission of COVID-19 to employees. Specifically, this includes patient screening and management plans, standard and transmission-based precautions, PPE, aerosol-generating procedures for those with COVID-19, physical distancing, physical barriers, cleaning and disinfection, ventilation, health screens and medical management, vaccinations, trainings, anti-retaliation policies, recordkeeping, and reporting work-related COVID-19 fatalities and in-patient hospitalizations to OSHA.


Here are some of the additional considerations that employers should be considering:

  1. At the outset, it is important to note there are numerous carveouts that exempt a wide range of healthcare providers from the ETS requirements. Employers should carefully assess these carveouts to ensure they are truly covered by the ETS.
     
  2. OSHA will use its enforcement discretion for employers who are making a good faith effort to comply with the ETS. It is important to document compliance efforts with the ETS.
         Continue Reading...
 
Judging the Sincerity of Religious Beliefs
12/17/2020
By: Morgan Geffre
In many situations, the question of whether an employee’s request for a religious accommodation is tied to sincere religious beliefs is not at issue. Instead, employers simply need to assess whether they can provide the accommodation without causing an undue hardship. Where an employer does question whether the employee sincerely holds those beliefs—an issue that might arise if an employee asserts a dubious religious objection to the COVID vaccine—it should look to the EEOC’s long-standing guidance on the level of inquiry it can make.
 
What are “religious” beliefs and practices?
 
According to the EEOC, religious practices include the “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.” Religion typically concerns “ultimate ideas” about “life, purpose, and death.” The EEOC does not protect beliefs merely because they are strongly held. Whether a practice is religious depends on the employee’s motivation. Social, political, or economic philosophies, as well as personal preferences, are not protected as religious beliefs under Title VII.
 
The EEOC does grant employees the benefit of the doubt. Employers should not dismiss the beliefs simply because the employee’s practices deviate from the exact tenants of a religion, or because few or no people adhere to those religious beliefs. The EEOC cautions employers that      Continue Reading...
 
Promises, Promises, Promises: The Perils of the Christmas Bonus
12/7/2020
By: Morgan Geffre

While we may all look back and laugh at Clark Griswold from National Lampoon’s Christmas Vacation and his meltdown from not receiving a Christmas bonus, that may be a very real scenario for many employees this year following the struggles the COVID-19 pandemic brought to most employers.

Although canceling employee bonuses is a great setup for a comedy, year-end bonuses can lead to legal snags that are no laughing matter for employers. Under Kansas wage payment laws and general principles of contract law, employers are legally obligated to pay bonuses when employees meet the requirements to become eligible for and earn them. Simply put, employers must own up to promises they make to employees about pay.
 
For example, if you tell employees at the beginning of the year that you will pay them a holiday bonus of a set amount at the end of the year, you must pay the bonus to employees whose employment continues throughout the year. However, a past practice of giving discretionary Christmas bonuses does not give rise to a legal obligation to pay bonuses of a particular amount, or at all, in subsequent years. That seems simple enough. But, employers can unwittingly create a legal obligation if they include a Christmas bonus in an itemized list of compensation and benefits in an offer letter or annual compensation statement.
 
Year-end bonuses based on individual, department, or company productivity goals or profits can also create legal headaches. The key is to have clear, well-written bonus policies that pass legal muster.      Continue Reading...
 
Kansas Voting Leave Law 101
09/30/2020
By: Morgan Geffre

With elections looming on November 3, it is important for employers to prepare for leave requests associated with voting. Federal law does not require employers to provide leave to vote, but most states do, especially when work hours do not allow sufficient time to vote while the polls are open. Laws also vary between states on the amount of time, whether notice is required, whether the time is paid, and whether the employer can dictate which hours the employee may take leave to vote.

In Kansas, employees are entitled to two consecutive hours of paid time to vote. However, outside the lunch break, employers may specify when the two-hour period may be taken and can require that the two-hour period be taken prior to or after an employee’s regular working hours. For example, if the polls are open from 7:00 am to 7:00 pm and the employee’s scheduled shift is from 8:00 am to 5:00 pm, the employer does not have to provide paid leave because the employee has two consecutive hours after work to vote. Any employer who intentionally obstructs an employee from voting or imposes a penalty on an employee who takes leave to vote is subject to a class A misdemeanor.

One developing area of voting leave law is how employers handle the greater flexibility in voting. If the employee has the option to vote in advance or by mail, does the employee still qualify for leave? Kansas has not yet addressed this question, but      Continue Reading...

 
EEOC Updates COVID-19 Guidance for COVID-19 Testing and ADA Accommodations
09/22/2020
By: Morgan Geffre

On September 8, the EEOC updated its guidance with respect to what employers should know about COVID-19, the ADA Rehabilitation Act, and other EEO laws. Generally, the updates act to clarify previously taken positions of the EEOC.

Two of the important clarifications involve the EEOC’s position on administering COVID-19 tests to employees, and an employers’ ability to invite employees to request disability accommodations.

  1. Employers are still able to administer COVID-19 tests if they are accurate and reliable, but the EEOC notes the consideration of false positives and negatives. The EEOC also added the disclaimer that a negative test result does not mean the employee won’t contract COVID-19, and employers should continue requiring social distancing measures.
  2. Many employers are still operating from home. In preparation for returning to the physical workplace, the EEOC allows employers to invite employees to submit requests for disability accommodations in advance of their return. This would simply start the interactive process. Those employees who do not request an accommodation in advance would not be barred from later asking.
 
DOL Updates FFCRA Q&As for Fall 2020 School Year
08/31/2020
By: Morgan Geffre

The Department of Labor continues to update the Q&As regarding the Families First Coronavirus Response Act (FFCRA). The recent updates have big impacts on parents of school-aged children as schools tackle the decision of how to move forward. No matter what local schools and parents decide, it is important that employers be prepared.

Hybrid Learning: Under this model, children would alternate between days attending school in person and participating in remote learning. Here, parents would be allowed to take FFCRA leave on the days that the child is home participating in remote learning, because school is effectively “closed” on the days of remote learning. The requirement still applies that the employee must actually need to care for the child during that time and there is no other suitable person to do so.

Remote Learning: Some schools are choosing to proceed with only remote learning because of COVID-19. Employees with children who attend such schools would be eligible for FFCRA leave while the school is closed, as long as the employee meets the other requirements. In the event the school reopens at a later time, the employee may lose FFCRA eligibility.

Elective Remote Learning: If an employee has the option of allowing his or her child to attend in person classes or participate in remote learning, the situation changes. Employees who voluntarily sign up for remote learning out of fear their child will contract COVID-19 will lose eligibility for leave under the FFCRA because the school      Continue Reading...

 


Editors
Don Berner Image
Don Berner, the Labor Law, OSHA, & Immigration Law Guy
Boyd Byers Image
Boyd Byers, the General Employment Law Guy
Jason Lacey Image
Jason Lacey, the Employee Benefits Guy
Additional Sources
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