Employment Law Updates

On Friday, January 21, a federal judge in Texas issued a nationwide preliminary injunction blocking implementation of the federal employee vaccine mandate contained in an Executive Order. The decision can be found at gov.uscourts.txsd.1855108.36.0.pdf (courtlistener.com). This injunction applies only to federal employees. A federal judge in Georgia had previously issued a nationwide injunction preventing the separate Executive Order mandating federal contractor employee vaccinations from going into effect. The latter injunction is on appeal, and this new injunction will almost certainly be appealed as well. Both cases likely will ultimately be decided by the U.S. Supreme Court. For now, those Executive Orders are not in effect.

The U.S. Supreme Court today blocked Occupational Safety and Health Administration's (OSHA's) emergency temporary standard requiring businesses with at least 100 employees to ensure workers are vaccinated against the coronavirus or wear masks and undergo weekly COVID-19 testing. The Court, however, allowed the federal government through CMS to require COVID-19 vaccination for health care workers at Medicare- and Medicaid-certified providers and suppliers. The court noted in the second case that "health care workers around the country are ordinarily required to be vaccinated for diseases."

U.S. Supreme Court

On January 7, the United States Supreme Court heard oral arguments concerning the OSHA rule that required employers with at least 100 employees to ensure workers are either vaccinated or tested weekly and wear masks, and also the separate CMS mandate that applies to certain health care workers. The 6th Circuit had lifted a stay imposed by another court concerning the OSHA rule, allowing the rule to remain in effect. The justices of the Supreme Court appeared skeptical of the OSHA mandate, but appeared more receptive to allowing the health care mandate to survive. We are expecting a ruling in the near future.

EEOC guidance

In updated guidance from the U.S. Equal Employment Opportunity Commission (EEOC) found at What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws | U.S. Equal Employment Opportunity Commission (eeoc.gov), the agency said that an employee's or job applicant's COVID-19-related impairment may qualify as a disability under the Americans with Disabilities Act (ADA) even if the worker's initial COVID-19 illness was not covered. A worker's COVID-19 illness will not be considered an ADA disability if the worker experiences mild COVID-19 symptoms that resolve in a few weeks with no other consequences. In that case, the worker would not be entitled to a reasonable accommodation under the Act. Cases of “long Covid” for people with long-term effects from Covid-19 might qualify as a disability that could require a reasonable accommodation.

Free Covid tests

The DOL and CMS have issued guidance concerning the new federal requirement that Covid-19 tests should be made available without charge. The DOL posted a new set of frequently asked questions and answers addressing the new requirement. The CMS issued its own set of FAQs with information for consumers on getting at-home OTC tests with no cost.

John Falcone and Luke Malloy handle employment law matters at PLDR Law. Feel free to contact us if you have questions about this matter.

PLDR Law John Falcone 1  Luke Malloy square

A federal appeals court had issued an injunction staying the OSHA rule that required employers with at least 100 employees to ensure workers are either vaccinated or tested weekly and wear masks. Because there were numerous lawsuits challenging the rule pending in the federal circuit courts around the country, the cases were consolidated into the 6th Circuit Court of Appeals. Late on Friday night, the 6th Circuit lifted the stay, allowing the rule to remain in effect. The Court’s decision can be found at 21a0287p-06.pdf (uscourts.gov).

A federal judge in Georgia yesterday (December 7) issued a nationwide injunction preventing the Executive Order mandating federal contractor employee vaccinations from going into effect. Courts had previously enjoined the separate OSHA rule that applies to employers with at least 100 employees. Yesterday’s injunction has nationwide effect because one of the parties to the lawsuit was a nationwide contractor trade association. That injunction will certainly be appealed, so this is not the last word on the subject. The case likely will ultimately be decided by the U.S. Supreme Court. For now, the rule is not in effect. Stay tuned for further developments.

John Falcone and Luke Malloy handle employment law matters at PLDR Law. Feel free to contact us if you have questions about this matter.

PLDR Law John Falcone 1  Luke Malloy square

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