The National Labor Relations Board (the “NLRB” or “Board”) seemingly took very little time off during the holidays and in the last few weeks announced that it is seeking public input on whether to reconsider two significant standards. First, on December 27, 2021, the NLRB issued a notice inviting parties to submit briefs on whether it should reconsider its standard for determining independent contractor status. Second, on January 6, 2022, the Board invited parties to file briefs on whether it should continue to adhere to the standard established for determining whether a facially neutral work rule violates Section 8(a)(1) of the National Labor Relations Act (“NLRA” or the “Act”). These invitations come hot on the heels of the Board’s December 7th invitation for briefing on its standard for determining appropriate bargaining units.

Continue Reading NLRB Rings in the New Year by Inviting Briefing on Multiple, Far-Reaching Standards Impacting Employers

On January 13, 2022, the United States Supreme Court upheld the Centers for Medicare & Medicaid Services (“CMS”) Interim Final Rule (the “Rule”) in a 5-4 decision, staying the preliminary injunctions issued for 24 states by the District Courts for the Eastern District of Missouri and the Western District of Louisiana.  Therefore, the CMS vaccine mandate is in full effect for all states except Texas, which was not part of the cases before the Court.  The Rule requires nearly all workers at Medicare- and Medicaid-certified facilities—whether medical personnel, volunteers, janitorial staff, or even contractors who service the facilities—to be fully vaccinated against COVID-19 unless they qualify for a medical or religious exemption.

Continue Reading U.S. Supreme Court Lifts Preliminary Injunctions on Healthcare Worker Vaccine Mandate

On January 13, 2022, the United States Supreme Court granted emergency relief to the petitions of numerous states, businesses, and non-governmental organizations by staying the implementation and enforcement of the federal Occupational Safety and Health Administration’s (“OSHA”) COVID-19 Emergency Temporary Standard (“ETS”).  Under the original ETS, private employers with 100 or more employees were required to implement a mandatory vaccination or weekly testing/face covering policy, which constituted a drastic change in policy for many employers and contradicted many state requirements.  Although the U.S. Court of Appeals for the Sixth Circuit has yet to ultimately decide on the merits whether the ETS can stand, the stay by the Supreme Court indicates how the Court may ultimately view the ETS and OSHA’s authority to require vaccinations and weekly testing.  Nonetheless, the ETS is not dead yet, so employers should continue to monitor the appeal process and OSHA’s response to the stay.

Continue Reading U.S. Supreme Court Stays Implementation of OSHA’s COVID-19 ETS Requiring Vaccination or Weekly Testing Policy

In a recent decision regarding an employee’s claims for violations of Illinois’ Biometric Information Privacy Act (“BIPA”), the United States Court of Appeals for the Seventh Circuit asked the Illinois Supreme Court to provide much-needed clarification on the accrual of BIPA violations.  See Cothron v. White Castle System, Inc., Case No. 20-3202, 2021 U.S. App. LEXIS 37593 (7th Cir. Dec. 20, 2021).

Continue Reading Seventh Circuit Certifies Hotly-Contested BIPA Accrual Issue to Illinois Supreme Court

For the second time, the standards-setting board for the California Division of Occupational Safety and Health (“Cal/OSHA”) has readopted, with revisions, the agency’s COVID-19 Prevention Emergency Temporary Standards (“ETS”).  The revised ETS become effective on January 14, 2022, and impose new obligations on nearly all employers in the Golden State.

Continue Reading California Employers Face New Obligations Under Cal/OSHA’s Revised COVID-19 ETS

In our annual California Legislative Update, we briefly explained that SB 606 expanded the enforcement authority of the California Division of Occupational Safety and Health (“Cal/OSHA”) in various ways.  With the new law’s effective date (January 1, 2022) right around the corner, we are providing a more detailed breakdown on the two new categories of Cal/OSHA violations created by SB 606 and its potential impact on California employers.

Continue Reading New Year Means Newly Expanded Enforcement Authority for Cal/OSHA

On December 14, 2021, San Francisco’s Board of Supervisors unanimously passed legislation providing domestic workers with paid sick leave – the first of its kind in the United States.  The ordinance, called “Domestic Workers’ Equal Access to Paid Sick Leave,” establishes a “portable” paid sick leave benefit that allows people who work for multiple households to earn and consolidate benefits from several “hiring entities” and access that paid leave as they move between jobs.

Continue Reading San Francisco Passes Measure Requiring Sick Leave for Domestic Workers – “First of Its Kind”

As we previously predicted, significant changes are taking place at the National Labor Relations Board (“NLRB” or the “Board”). To date, much of that change has been in the agenda set by General Counsel Jennifer Abruzzo. Now, President Biden has had the opportunity to impact the composition of the Board itself and thus Board law. President Biden has appointed, and the Senate confirmed, two new democratic members to the NLRB: David Prouty and Gwynn Wilcox, who are both former union lawyers. This gives the Democrats a majority on the Board and indicates a strong likelihood that President Biden’s pro-labor agenda will be approved by the Board. It appears that we now know the first significant change this newly constituted Board will tackle.

Continue Reading NLRB Foreshadows a Return to Union Gerrymandered Bargaining Units

On December 22, 2021, the California Department of Public Health (“CDPH”) issued an order requiring workers in health care facilities to receive booster vaccinations to help combat COVID-19. Health care workers must receive the booster vaccine by February 1, 2022.

Continue Reading California Department of Public Health Requires Health Care Workers to Receive the Booster Vaccine by February 1, 2022

On December 17, 2021, in a “Friday Night Surprise” the Sixth Circuit Court of Appeals lifted the Stay on the Federal Occupational Safety and Health Administration’s COVID-19 Emergency Temporary Standard (ETS).  This seminal ETS applies to employers with 100 or more employees and requires that employees be either (1) vaccinated; or (2) weekly tested and fully masked if unvaccinated.  While it is anticipated that the Supreme Court will ultimately decide whether the ETS stands, OSHA has already stated that they will begin enforcement of the ETS in January 2022.  Specifically, OSHA will enforce all requirements except testing for unvaccinated employees beginning January 10, 2022, and enforcement related to testing will begin February 9, 2022.

Continue Reading OSHA Emergency Temporary Standard Survival Guide

On November 4, 2021, in response to President Biden’s Executive Order, the Department of Labor, through the Occupational Safety and Health Administration (“OSHA”), issued an Emergency Temporary Standard (“ETS”).  You can read our prior article about the ETS here.  Generally, the ETS mandates all employers with 100 or more employees to require employees be vaccinated against COVID-19 or undergo weekly testing.  The ETS was immediately halted when the United States Court of Appeals for the Fifth Circuit issued a temporary stay.  Then, numerous lawsuits were filed across the nation, and actions were pending in each of the other Circuit Courts.  The Sixth Circuit “won” the multidistrict lottery, and was selected to hear the combined challenges, including OSHA’s emergency motion to dissolve the stay.  You can read our prior article about the temporary stay here.

Continue Reading Sixth Circuit Reinstates OSHA’s Emergency Temporary Standard for Private Employers Mandating COVID-19 Vaccinations or Weekly Testing