Employment Law Updates

On April 27, 2021, the President issued an Executive Order which increases the minimum wage for most federal contractors. Beginning January 30, 2022, that minimum wage must be at least $15.00 per hour and will be adjusted annually thereafter. The new wage will apply to federal contracts entered into or renewed on or after January 30, 2022. The Department of Labor issued its final Rule on November 24 with regulations to implement the Order. The Rule is found at Federal Register :: Increasing the Minimum Wage for Federal Contractors. It applies primarily to service contracts, and does not apply to grants.

There have been recent developments in the three areas of the federal vaccine mandates.

(1) The executive order mandating vaccines for all federal employees and contractors

Updated guidance for federal contractors issued by the Department of Labor on November 10 clarified that covered contractor employees must be fully vaccinated by January 18, 2022. The guidance can be found at guidance.

(2) The executive order mandating vaccines for health care workers in certain settings that receive Medicare or Medicaid reimbursement

Eleven states have filed suit challenging the Centers for Medicare & Medicaid Services' (CMS') COVID-19 vaccine directive for health care workers. The CMS interim final rule requires covered employees to be fully vaccinated against COVID-19 by January 18, 2022, or to have received an approved religious or medical exemption or deferral by January 4, 2022. The CMS interim final rule can be found at interim final rule.

(3) The OSHA regulations concerning mandatory vaccines or testing for employers with at least 100 employees

Lawsuits challenging OSHA’s authority to issue the emergency temporary standards have been filed in almost all of the federal circuits in the USA. The 5th Circuit has temporarily suspended the rule while it considers a challenge. Because of the lawsuits pending in the other federal circuits, a judicial panel has consolidated the cases and randomly selected the 6th Circuit to hear the challenge. OSHA has the authority to issue emergency temporary standards only if it can show both of the following factors:

    • Employees are exposed to grave danger from the hazard.
    • The ETS is necessary to protect employees from that danger.

The OSHA issue will likely be decided ultimately by the U.S. Supreme Court, but it is not certain when we can expect that decision. In the meantime, OSHA has suspended its implementation and enforcement of the rule pending the litigation.

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

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As the fine print details of the new OSHA standard emerge, please note the following:

As we discussed in a previous blog, President Biden on September 9 announced proposals for more aggressive action against the spread of Covid-19. Those proposals consist of 3 primary measures: (1) an executive order mandating vaccines for all federal employees and contractors; (2) an order mandating vaccines for health care workers in settings that receive Medicare or Medicaid reimbursement; and (3) OSHA regulations requiring employers with at least 100 employees to require employees to be vaccinated. OSHA has now issued an emergency temporary standard (ETS) specifying the details of its requirements for employers with at least 100 employees. The standard can be found on the Department of Labor’s website at COVID-19 Vaccination and Testing ETS | Occupational Safety and Health Administration (osha.gov).

On April 27, 2021, the President issued an Executive Order (Federal Register :: Increasing the Minimum Wage for Federal Contractors) which increases the minimum wage for federal contractors. Beginning January 30, 2022, that minimum wage must be at least $15.00 per hour and will be adjusted annually thereafter. The new wage will apply to federal contracts entered into or renewed on or after January 30, 2022. The Order directs the U.S. Department of Labor to issue regulations by November 24, 2021 to implement the requirements of the Order. Some of the questions about details of the Order should be answered by those regulations.

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