November 2021 E-Update


Click here to view entire E-Update as a PDF


Where Do OSHA’s Vax-or-Test ETS and CMS’ Vaccination Mandate Stand Now?

As employers likely know, the Biden administration has issued a number of vaccination mandates in various forms – all of which are subject to challenge by States and other interested parties. For more, click here.

EEOC Expands Its COVID-19 Guidance to Address Retaliation

Throughout the pandemic, the Equal Employment Opportunity Commission has continuously updated its COVID-19 Guidance to provide employers with assistance on issues arising under the antidiscrimination laws that it enforces. For more, click here.

NLRB GC Says OSHA’s ETS Will Require Unionized Employers to Bargain Over Implementation

On November 10, 2021 National Labor Relations Board General Counsel Jennifer Abruzzo issued a memorandum expressing her office’s views concerning employer bargaining obligations related to OSHA’s Emergency Temporary Standard (ETS) to Protect Workers from Coronavirus. For more, click here.

Federal Contractor Update – the Minimum Wage Final Rule, Updates to the Vaccination Mandate and More

As we discussed in our April 2021 E-Update, President Biden signed Executive Order 14026 (EO) increasing the minimum wage rate applicable to government contractors and subcontractors to $15 an hour – a significant increase from the current rate of $10.95. For more, click here.



The DOL’s Relaunched EARN Website Provides Employers with Disability Resources.  This month, the Department of Labor announced its redesigned Employer Assistance and Resource Network on Disability Inclusion website. For more, click here.

The DOL, NLRB and EEOC Join Together to Fight Retaliation.  The three major federal agencies governing the workplace – the Department of Labor, the National Labor Relations Board, and the Equal Employment Opportunity Commission – announced a joint initiative to raise awareness about worker protections from retaliation for exercising their rights under federal labor and employment laws. For more, click here.

NLRB GC Memo Addresses Protections for Immigrant Workers. The General Counsel of the National Labor Relations Board, Jennifer Abruzzo, issued a memo on November 8, 2021, emphasizing that undocumented workers are still entitled to the protections of the National Labor Relations Act. For more, click here.

Ill-Considered Questions About Retirement May Support Age Discrimination Claim. A supervisor’s repeated questions about when the employee was going to retire was “one of the most powerful pieces of evidence” of age discrimination in the case, the U.S. Court of Appeals for the Sixth Circuit found.  For more, click here.

It’s Not Retaliation Just Because the Employee Doesn’t Like It.  Not every action that an employee dislikes constitutes illegal retaliation, as the U.S. Court of Appeals for the First Circuit recently confirmed in a case involving reassignment to an unwanted position. For more, click here.

What’s the “Mailbox Rule” for Email?  In the context of an emailed arbitration agreement, the U.S. Court of Appeals for the Fifth Circuit recently explained how an employer can demonstrate that an employee has received an electronic communication. For more, click here.


TOP TIP: Employers Must Protect Employees from Customer Harassment

Under Title VII, it is not enough to ensure that employees (and managers) are not harassing one another – employers must also ensure that employees are not being harassed by third parties, including customers, as the U.S. Court of Appeals for the Ninth Circuit recently reminded us.  For more, click here.