December 2021 E-Update

Click here to view entire E-Update as a PDF

Where All the Federal Vaccine and Other COVID Mandates Stand Now

The Biden Administration has issued a number of COVID-related mandates applicable to employers, including: (1) OSHA’s vax-or-test Emergency Temporary Standard (ETS) for larger employers; (2) OSHA’s ETS for healthcare employers; (3) Executive Order 14042 requiring vaccination of federal contractor employees; and (4) the CMS vaccination mandate for employees of Medicare- and Medicaid-certified health care providers. For more, click here.

More Vax-or-Test ETS Guidance from OSHA on Over-the-Counter Tests

Now that the stay on the vax-or-test ETS has been lifted, the Occupational Safety and Health Administration has plunged back into its implementation activities, including updating the FAQs. Of particular interest, OSHA has added a number of questions addressing the use of over-the-counter (OTC) tests. For more, click here.

CDC Provides Guidance to Employers on Marijuana Use by Employee Drivers

The National Institute of Occupational Safety and Health (NIOSH), a division of the Centers for Disease Control and Prevention (CDC), recently issued guidance to employers on marijuana and workplace motor vehicle safety programs. For more, click here.

OFCCP Will Require Annual AAP Verification by Federal Contractors. The Office of Federal Contract Compliance Programs has announced the creation of an online contractor portal through which service and supply (but not construction) contractors and subcontractors: (1) are required to annually certify whether they have developed and maintained an affirmative action program for each establishment and/or functional unit; and (2) must submit their AAPs during compliance evaluations by the OFCCP. For more, click here.

NLRB Signals the Likely Return of the Micro-Unit. The National Labor Relations Board is inviting briefs in a case where a union seeks to represent a small pocket of employees within an employer’s larger, functionally integrated operation. For more, click here.

Retaliation May Occur Even If the Employee Is Unaware of It. In a warning to employers, the U.S. Court of Appeals for the Eleventh Circuit found that an employer’s actions could constitute illegal retaliation for an employee’s discrimination complaint, even if she did not know of it. For more, click here.

Federal Contractors Must Ban the Box. The Fair Chance to Compete for Jobs Act of 2019 (which was part of the National Defense Authorization Act) took effect on December 20, 2021 and requires agencies to include a clause in federal contracts that prohibits contractors from requesting, either verbally or in writing, the criminal history of an applicant for work under a federal contract until after a conditional offer of employment has been made. For more, click here.

Do Not Replace an Employee Based on Performance with One Rated as Worse. That was the rather obvious lesson learned by an employer in a recent sex discrimination case. But there are more subtle lessons here regarding an employer’s ability to establish performance expectations and documentation. For more, click here.

Retaliation Claim May Arise From Mistaken Belief About Discrimination. A recent case offers employers a good reminder of the fact that a valid retaliation claim may exist even if the underlying discrimination claim has no merit. For more, click here.

A Notice of Termination Is an Adverse Action, Even If the Employee Is Retained. The U.S. Court of Appeals for the Third Circuit joined its sister Circuits in finding that an employee has experienced an adverse employment action when they receive a notice of termination, even if they ultimately maintain their employment with the employer. For more, click here.

A Supervisor’s Knowledge of a Safety Violation Can Be Attributed to the Employer. Even where the employer has directed the supervisor to avoid the violation in question, as the U.S. Court of Appeals for the Fifth Circuit found. For more, click here.

Although the federal minimum wage remains $7.25, with a tipped wage rate of $2.13, most states in the mid-Atlantic region have implemented higher minimum wage rates. For more, click here.